-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UMxRnlcnMdpjO+nvrdL9SEcNLpCeSmQsRf1u/zg3wD/Mv9flZMUXy0oSLrciFgb6 h1ZKUdosl23ADygUScQxeA== 0000950131-01-502267.txt : 20010713 0000950131-01-502267.hdr.sgml : 20010713 ACCESSION NUMBER: 0000950131-01-502267 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 62 FILED AS OF DATE: 20010712 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MANITOWOC CO INC CENTRAL INDEX KEY: 0000061986 STANDARD INDUSTRIAL CLASSIFICATION: CONSTRUCTION MACHINERY & EQUIP [3531] IRS NUMBER: 390448110 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: SEC FILE NUMBER: 333-65000 FILM NUMBER: 1680184 BUSINESS ADDRESS: STREET 1: 500 S 16TH ST STREET 2: STE B CITY: MANITOWOC STATE: WI ZIP: 54221-0066 BUSINESS PHONE: 9206844410 MAIL ADDRESS: STREET 1: 500 S 16TH ST CITY: MANITOWOC STATE: WI ZIP: 54221-0066 S-4 1 ds4.txt FORM S-4 As filed with the Securities and Exchange Commission on July 12, 2001 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-4 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 --------------- THE MANITOWOC COMPANY, INC.* (Exact name of registrant as specified in its charter) Wisconsin 3531 39-0448110 (State or other (Primary Standard (I.R.S. Employer jurisdiction of Industrial Classification Identification No.) incorporation) Code Number) 500 South 16th Street Manitowoc, WI 54221-0066 (920) 684-4410 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Maurice D. Jones, Esq. Copies to: General Counsel and Secretary Jay O. Rothman, Esq. The Manitowoc Company, Inc. Foley & Lardner 500 South 16th Street 777 East Wisconsin Avenue Manitowoc, WI 54221-0066 Milwaukee, Wisconsin 53202 (920) 684-4410 (414) 271-2400 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------- Approximate date of commencement of proposed sale to the public: Upon consummation of the exchange offer referred to herein. --------------- If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] --------------- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
Title of Each Class of Proposed Maximum Securities to be Amount to be Proposed Maximum Aggregate Amount of Registered Registered Offering Price Per Note(1) Offering Price Registration Fee (4) - -------------------------------------------------------------------------------------------------------------- 10 3/8% New Senior Subordinated Notes due 2011(2)............... (Euro)175,0000,000 100% (Euro)175,000,000 $37,436.88 - -------------------------------------------------------------------------------------------------------------- Guarantees for the New 10 3/8% Senior Subordinated Notes due 2011.................. (3) (3) (3) (3)
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) Estimated solely for purposes of determining the registration fee. (2) Calculated pursuant to Rule 457(f) under the Securities Act of 1933. (3) Pursuant to Rule 457(n) under the Securities Act of 1933, no registration fee is required with respect to the guarantees. (4) Calculated based on an exchange rate of (Euro)1.00 = $0.8557, being the noon buying rate on July 10, 2001. --------------- The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- * TABLE OF ADDITIONAL REGISTRANTS
State or Other Primary Standard Jurisdiction of Industry I.R.S. Employer Name, Address and Telephone Incorporation or Classification Identification Number (1) Organization Number Number - --------------------------- ---------------- ---------------- --------------- Marinette Marine Corporation Wisconsin 3731 39-0451225 Manitowoc Foodservice Companies, Inc. Nevada 3585 88-0369684 Manitowoc Crane Companies, Inc. Nevada 3531 88-0369683 Manitowoc FP, Inc. Nevada 3585 88-0369687 Manitowoc CP, Inc. Nevada 3531 88-0369686 Diversified Refrigeration, Inc. Tennessee 3585 62-1276418 KMT Refrigeration, Inc. Wisconsin 3585 39-1863487 Harford Duracool, LLC Wisconsin 3585 52-2226739 KMT Sales Corp. Nevada 3585 62-1742336 Manitowoc Beverage Systems, Inc. Nevada 3585 06-1530881 Manitowoc Equipment Works, Inc. Nevada 3585 39-1775032 Manitowoc Ice, Inc. Wisconsin 3585 39-1863489 Multiplex Company, Inc. Missouri 3585 39-1987754 SerVend International, Inc. Nevada 3585 35-2026245 SerVend Sales Corp. Nevada 3585 35-2050079 Femco Machine Company, Inc. Nevada 3531 39-1780976 Manitowoc Boom Trucks, Inc. Texas 3531 74-2365486 Manitowoc Cranes, Inc. Wisconsin 3531 39-1863488 Manitowoc MEC, Inc. Nevada 3531 39-1775033 Manitowoc Re-Manufacturing, Inc. Wisconsin 3531 36-3536154 North Central Crane & Excavator Sales Corp. Nevada 3531 36-3075255 West-Manitowoc, Inc. Wisconsin 3531 39-1769651 Environmental Rehab, Inc. Wisconsin 3531 39-1626922 Manitowoc Crane & Shovel Sales Corp. Ohio 3531 NONE Manitowoc Western Company Wisconsin 3531 94-3047618 Manitowoc Marine Group, LLC Nevada 3731 39-1947771 Potain Corporation Delaware 3531 65-0923259
- -------- (1) The address of these additional registrants is 500 South 16th Street, Manitowoc, Wisconsin 54221-0066. Their telephone number is (920) 684-4410. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +The information in this prospectus is not complete and may be changed. We may + +not sell these securities until the registration statement filed with the + +Securities and Exchange Commission is effective. This prospectus is not an + +offer to sell these securities and it is not soliciting an offer to buy these + +securities in any state where the offer or sale is not permitted. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED JULY 12, 2001 PROSPECTUS [LOGO] THE MANITOWOC COMPANY, INC. Offer to Exchange All Outstanding 10 3/8% Senior Subordinated Notes due 2011 (Euro)175,000,000 Aggregate Principal Amount for New 10 3/8% Senior Subordinated Notes due 2011 (Euro)175,000,000 Aggregate Principal Amount We are offering to exchange an aggregate principal amount of up to (Euro)175,000,000 of our new 10 3/8% senior subordinated notes due 2011, which have been registered under the Securities Act of 1933, for a like amount of our old 10 3/8% senior subordinated notes due 2011. ------------ . The exchange offer expires at 5:00 p.m., New York City time, on , 2001, unless we extend it. . The terms of the new notes to be issued are substantially identical to the terms of the old notes, except for transfer restrictions and registration rights relating to the old notes. . No established trading market for the new notes currently exists. We will apply to list the new notes on the Luxembourg Stock exchange in accordance with the rules of the Luxembourg Stock Exchange. . You may withdraw tenders of old notes at any time prior to the expiration of the exchange offer. . We will not receive any proceeds from the exchange offer. See "Risk Factors" beginning on page 12 for a discussion of risk factors that you should consider before deciding to exchange your old notes for new notes. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. ------------ The date of this prospectus is , 2001. TABLE OF CONTENTS
Page ---- Prospectus Summary....................................................... 1 Risk Factors............................................................. 12 Disclosure Regarding Forward-Looking Statements.......................... 20 The Exchange Offer....................................................... 21 The Transactions......................................................... 30 Use of Proceeds.......................................................... 31 Capitalization........................................................... 32 Unaudited Pro Forma Condensed Consolidated Financial Statements.......... 33 Selected Historical Financial and Other Data............................. 41 Management's Discussion and Analysis of Financial Condition and Results of Operations........................................................... 43 Business................................................................. 55 Management............................................................... 71 Description of Indebtedness.............................................. 73 Description of the New Notes............................................. 75 United States Federal Income Tax Considerations.......................... 117 Plan of Distribution..................................................... 118 Legal Matters............................................................ 118 Experts.................................................................. 118 Where You Can Find More Information...................................... 119 General Listing Information.............................................. 120 Information About the Guarantors......................................... 120 Index to Financial Statements............................................ F-1
---------------- In this prospectus, "Manitowoc," "we," "us" and our refer to The Manitowoc Company, Inc. and its consolidated subsidiaries except where we expressly state that we are only referring to The Manitowoc Company, Inc. Unless otherwise indicated, all references in this prospectus to our business and pro forma data give effect to our acquisition of Potain SA and related financing transactions. This prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. We will provide you without charge on your request, a copy of any documents that are incorporated by reference to this prospectus, other than exhibits to those documents that are not specifically incorporated by reference into those documents, by writing or telephoning The Manitowoc Company, Inc., P.O. Box 66, Manitowoc, Wisconsin 54221-0066; Attention Maurice D. Jones, General Counsel and Secretary; (920) 684-4410. To ensure timely delivery, please make your request as soon as practicable and, in any event, no later than five business days prior to the expiration of the exchange offer. You should rely only on the information provided in this prospectus. We have not authorized anyone to provide you with any different information. The information in this prospectus is current only as of the date on the cover, and our business or financial condition and other information in this prospectus may change after that date. We accept responsibility for the information contained in this prospectus. To the best of our knowledge, the information we give in this prospectus is in accordance with the facts and contains no omissions likely to affect the import of the Luxembourg Stock Exchange Listing particulars. Solely for your convenience, this prospectus contains translations of some euro amounts into U.S. dollars and some French franc amounts into U.S. dollars. We are not making any representation to you regarding those translated amounts. Unless we otherwise clearly indicate, the translations of euros into U.S. dollars have been made at (Euro)1.00 = $0.8840, the average rate on the close of business on March 30, 2001. However, French franc amounts associated with the acquisition of Potain SA have been translated at the noon buying rate on May 9, 2001 of (Euro)1.00 = $0.8845. Euros are converted into French francs at a fixed rate of (Euro)1.00 = FRF 6.55957. i PROSPECTUS SUMMARY The following summary contains basic information about us, the exchange offer and the new notes and this offering. It likely does not contain all the information that is important to you. For a more complete understanding of us, the exchange offer and the new notes, we encourage you to read this prospectus in its entirety and the other documents we have referred you to. The Manitowoc Company, Inc. The Manitowoc Company, Inc. is a diversified industrial manufacturer with leading positions in its three principal markets: cranes; foodservice equipment; and marine services in the Great Lakes region. In our crane business, we design, manufacture and market a comprehensive line of crawler cranes, tower cranes and boom trucks with capacities ranging from 10 tons to 1,433 tons. Our cranes are used in a wide variety of applications, including energy, petrochemical and industrial projects, infrastructure development such as road, bridge and airport construction, commercial and high-rise residential construction, mining and dredging. In our foodservice business, we design, manufacture and market full product lines of ice making machines, walk-in and reach-in refrigerator/freezers, fountain beverage delivery systems and other foodservice refrigeration products for the restaurant, lodging, convenience store and institutional foodservice markets. In our marine service business, we provide ship building, repair and maintenance services in the U.S. Great Lakes region. We own four shipyards and operate over 55% of the drydock capacity, based on footage, serving the U.S. Great Lakes commercial fleet. Our principal executive offices are located at 500 South 16th Street, Manitowoc, Wisconsin 54220. Our telephone number is (920) 684-4410. For the year ended December 31, 2000, we had net sales of $873.3 million, earnings from operations plus depreciation and amortization, or EBITDA, of $130.7 million and net earnings of $60.3 million, reflecting five-year compound annual growth rates of 14.4%, 20.4% and 23.8%, respectively. On a pro forma basis for the same period, we had net sales of $1.1 billion, EBITDA of $172.2 million and net earnings of $49.0 million. We believe we are: . the leading provider of high capacity crawler cranes (over 150 tons) with an estimated 50% of worldwide sales; . one of two leading providers of tower cranes in the world with an estimated greater than 25% of worldwide sales; . the leading provider of ice making machines in the United States with an estimated 40% of U.S. sales; . the leading provider of walk-in refrigerator/freezers in the United States; and . the leading provider of marine services in the Great Lakes region. Over the last six years we have grown both internally and through selective acquisitions. We have introduced or acquired 125 new products since 1996. New products we have introduced since 1998 represented approximately 60% of our 2000 net product sales. With the completion of the acquisition of Potain, we have completed 16 acquisitions since 1995. These acquired businesses generated 52.8% of our pro forma 2000 net sales. In 1993, we adopted economic value added, or EVA(R), as a management tool to guide our investment, acquisition and operating decisions. EVA defines value creation as the cash return a business generates over and above its weighted average cost of capital. We believe the disciplined use of EVA in our decision- making helps us to invest capital efficiently, reduce operating costs and maximize our profitability and cashflow from operations. 1 Competitive Strengths We believe the following strengths are the primary drivers of our track record of growth and profitability: Leading Market Positions. We have served the crane and foodservice industries since 1925 and 1945, respectively, and we believe the Manitowoc name is among the best-known brands in those markets. We believe we hold a top three market share in all of our principal product categories and we believe that approximately 65% of our net sales are derived from product categories in which we have the first or second largest market share. We believe our strong market shares and our substantial installed base of equipment in the crane and foodservice markets, together with our established global distribution networks and our expertise in product development, provide a significant competitive advantage. Diverse Revenue Base. Our revenue base is diversified across three industries and five continents. Our crane, foodservice and marine segments, respectively, represent approximately 56.1%, 37.5% and 6.4% of our pro forma 2000 net sales. Approximately 27% of our pro forma 2000 net sales were generated outside of North America, principally in Europe with 21.7% and Asia with 2.9%, and we expect our international sales to grow faster than domestic sales over the next several years. We also have a diverse customer base, with no single crane or foodservice customer representing greater than 5.0% of our total pro forma net sales for 2000. While both our crane and foodservice segments are influenced by general economic conditions, they each serve different markets that do not react in lockstep with each other. Our marine segment provides additional stability, as its repair and maintenance services are primarily non-discretionary and the majority of our new construction contracts are with government agencies whose investment decisions are not necessarily influenced by general economic conditions. Strong Track Record of Product Innovation. Over the last six years we have introduced or acquired 125 innovative new products to better serve our customers' needs in all of our markets. We currently hold over 140 patents covering new product and technology innovations. . Cranes. In May 2000, we launched the most successful new crane in Manitowoc's history, the 275-ton capacity Model 999 crawler crane. We received orders for 80 Model 999 cranes in the first seven months following its introduction. In April 2001, we introduced the 110-ton Model 915 duty-cycle crane; the 110-ton Model 1015 foundation crane; the Model 555, a 150-ton limited duty-cycle lift crane; and the Model 19000, a 500-ton high-capacity liftcrane. . Foodservice. In 2000, we introduced our patented QuietQube(TM) ice-cube machines that feature our proprietary CoolVapor Defrost(R), or CVD, technology and provide capacities of up to 2,000 pounds of ice per day. Our QuietQube CVD product line substantially reduces noise and heat exhaust during operation as well as floor space requirements, compared to available competing products. In 2000, we also introduced our first ice flake machine, which expands our penetration into the healthcare industry and provides an entree into the supermarket segment where flakes are the preferred type of ice for keeping meat and seafood fresh. Cost Efficient Manufacturing. We believe we are a highly efficient manufacturer and service provider in each of our segments. Establishing production facilities in China for our ice machines in 1995 provided us a low cost manufacturing base for worldwide distribution of some of our foodservice products. In 2000, we implemented a "mixed model/demand flow" manufacturing process in our foodservice segment, which enables us to shorten lead times and respond more effectively to customer demand, while reducing required inventory levels. In our crane segment, we maintain modern, efficient production facilities that enable us to produce a high quality product with low lead time requirements. Through a series of steps over the last two years, including outsourcing of non-core manufactured components, redesign of production processes, elimination of production bottlenecks at our facilities and investments in technology, we have reduced the average manufacturing lead time for our crawler cranes from approximately 128 days in 1998 to approximately 70 days in 2000. 2 Excellent Customer Service. We support our products and our customers in the field through an extensive after-market customer service network. In our crane segment, we operate full-service machine shops and a fleet of fully equipped trucks that provide complete machining services at customer locations--or anywhere in the field--24 hours a day. Down-time in the field can be extremely costly for our customers and we believe our responsiveness and the quality of our customer service is an important differentiating factor for us in the lifting market. In our foodservice segment, we offer a continuous schedule of maintenance and repair training seminars during the year for independent service providers and our distributors. In 2000, over 14,000 individuals from around the world participated in our training seminars. We will only sell our foodservice products in markets where trained and qualified service personnel are available locally, and we work to ensure that quality product service is available in every market served. In our marine segment, we consistently complete repair, maintenance and new construction projects on time and within budget, which we believe is an important factor influencing our customers' decision to select us. Business Strategy With manufacturing and marketing operations in the U.S., Europe and Asia, our strong brand names and leading market positions, we believe we are well- positioned to serve our existing customers and to capitalize on growth opportunities around the world. We will continue to pursue our strategy by focusing on new product development, improving manufacturing efficiency, expanding our geographic reach and selectively pursuing acquisitions, using EVA as the principal management tool for evaluation of our operating and investment decisions. Emphasize New Product Development and Product Quality. We will continue to invest capital every year to develop new products with improved cost-effective functionality in response to changing customer requirements. We will also continue to improve and enhance our existing products. Maintain Highly Efficient Manufacturing. With EVA as a guiding principle, our manufacturing management teams are constantly seeking opportunities to improve productivity to increase our cash flow and return on invested capital. Our current initiatives include: . implementation of mixed model/demand flow in more of our foodservice business units over the next year; . introduction of additional welding robotics to our crane segment; and . expansion of our manufacturing operations in Asia. Extend Our Geographic Reach. We will continue to extend our reach deeper into existing geographic regions and into new markets. The Potain acquisition significantly extends our international presence with the addition of seven European and one Asian manufacturing sites and an established distribution network in 75 countries, including within Europe, Asia and Latin America. We intend to capitalize on the cross-selling opportunities both for our crawler crane and boom truck products through Potain's distributors overseas and for Potain's tower crane products through our Manitowoc distributors in North America. We recently opened a distribution center in Uruguay to serve the foodservice market in South America. In addition to establishing our own facilities in new markets, we will pursue joint ventures and licensing agreements where appropriate to further extend our manufacturing and distribution networks around the world. For example, we recently entered into a licensing agreement with Blue Star Limited in India for the production and marketing of refrigerators and freezers. 3 Selectively Expand Through Acquisition. We will continue to consider selective acquisitions that improve our market position by extending our product lines or geographic reach. In evaluating a potential acquisition candidate, we generally require that the candidate demonstrate the following: . leadership in its market niche; . the potential for easy integration into our existing operations; and . the potential for generating strong cash flow. Additionally, our objective for each acquisition is for it to be earnings per share accretive within two years and EVA positive within three years. With the completion of the acquisition of Potain, we have completed ten acquisitions since January 1, 1998. Deploy Capital Efficiently. We believe our track record of strong cash flow is attributable to our commitment to EVA. We began implementation of EVA principles in 1993 and have generated nearly $145 million of economic value for our investors since 1995. More than 25% of our workforce is incentivized by EVA performance. We plan to continue investing our capital based on EVA principles in order to maximize cash generation and increase our return on invested capital. Potain Acquisition On March 4, 2001, we submitted a binding offer to acquire from Legris Industries SA all of the outstanding capital stock of Potain for aggregate cash consideration of approximately FRF 2.3 billion (approximately U.S. $307.1 million), subject to a post-closing adjustment to reflect Potain's net income for the period from January 1, 2001 through the closing of the acquisition. On May 9, 2001, we and Legris entered into a share purchase agreement and simultaneously closed the acquisition. Concurrently with the closing of the acquisition, we issued the old notes, established a new senior credit facility and applied the proceeds from the issuance of the old notes and the new senior credit facility to consummate the Potain acquisition, refinance our existing indebtedness and pay fees and expenses arising out of the acquisition and related financing transactions. See "The Transactions." Potain SA, founded in 1928, is a leading designer, manufacturer and supplier of tower cranes for the building and construction industry, with an estimated greater than 25% of worldwide sales in the tower crane industry. Potain's product offerings include top slewing, luffing jib, topless and self-erecting tower cranes, special cranes for dams and other large building projects, and to a lesser extent hoists and aerial work platforms. Potain currently markets 78 different models and has sold more than 88,000 cranes worldwide. About 80% of the product range is less than three years old, with 32 models introduced in 1999 and eight models introduced in 2000. Potain operates eight production plants for the manufacture of tower cranes, located in France, Germany, Italy, Portugal and China. Potain's products are sold directly by company sales staff and by independent distributors throughout the world. This acquisition broadens our product line and establishes us as a leading global manufacturer of tower cranes, a segment in which we have not previously participated, and increases the percentage of our crane segment sales derived outside of North America from 10.0% to 41.4% on a pro forma basis for the year ended December 31, 2000. The acquisition also provides us manufacturing capacity in Europe and Asia and adds significantly to our distribution network throughout the world. 4 Summary Financial Information We have derived the summary historical financial data as of and for each of the five years ended December 31, 2000 from our audited consolidated financial statements. The summary historical financial data as of and for the three months ended March 31, 2000 and 2001 have been derived from our unaudited consolidated financial statements. The summary historical data below should be read in conjunction with "Selected Historical Financial and Other Data," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus. We have derived the summary unaudited pro forma financial information below from our historical financial statements and the historical financial statements of Potain. You should read this information in conjunction with "Unaudited Pro Forma Condensed Consolidated Financial Statements," which include the detailed adjustments and assumptions used to prepare this information. While this pro forma information is based on adjustments we deem appropriate and which are factually supported based on currently available data, the pro forma information may not be indicative of what actual results would have been, nor does this information purport to present our financial results for future periods. Summary Historical and Pro Forma Financial Data
For the Three Months Ended For the Years Ended December 31, March 31, ------------------------------------------------------------- ----------------------------- Pro Forma Pro Forma 1996 1997 1998 1999 2000(1) 2000(2) 2000 2001 2001(2) -------- -------- -------- -------- --------- ---------- -------- -------- --------- (Thousands of dollars, except financial ratios) Statement of Earnings Data: Net sales: Foodservice equipment... $242,317 $247,057 $319,457 $379,625 $ 425,080 $ 425,080 $ 92,929 $101,245 $101,245 Cranes and related products............... 220,821 268,416 339,051 389,510 376,250 636,212 100,770 84,258 158,845 Marine.................. 47,584 39,162 45,412 55,204 71,942 71,942 12,154 43,848 43,848 -------- -------- -------- -------- --------- ---------- -------- -------- -------- Total net sales......... 510,722 554,635 703,920 824,339 873,272 1,133,234 205,853 229,351 303,938 -------- -------- -------- -------- --------- ---------- -------- -------- -------- Costs and expenses: Cost of sales.......... 376,081 402,035 508,299 590,627 637,538 822,235 150,136 173,321 231,230 Engineering, selling and administrative expenses.............. 79,551 84,231 98,120 107,369 114,901 162,513 27,072 33,686 46,063 Plant relocation costs................. 1,200 -- -- -- -- -- -- -- -- Amortization........... 3,000 3,394 4,881 7,392 8,181 12,927 1,902 2,315 3,501 -------- -------- -------- -------- --------- ---------- -------- -------- -------- Total cost and expenses.............. 459,832 489,660 611,300 705,388 760,620 997,675 179,110 209,322 280,794 -------- -------- -------- -------- --------- ---------- -------- -------- -------- Earnings from operations............. 50,890 64,975 92,620 118,951 112,652 135,559 26,743 20,029 23,144 Interest expense........ (9,097) (6,230) (9,741) (10,790) (14,508) (47,399) (2,511) (4,096) (11,850) Other (expense) income-- net.................... 713 (928) (1,467) (2,155) (2,024) (2,899) (371) (115) (216) -------- -------- -------- -------- --------- ---------- -------- -------- -------- Earnings before taxes on income................. 42,506 57,817 81,412 106,006 96,120 85,261 23,861 15,818 11,078 Provision for taxes on income................. 16,863 21,394 30,032 39,222 35,852 34,957 8,948 5,948 4,542 -------- -------- -------- -------- --------- ---------- -------- -------- -------- Net earnings(5)......... $ 25,643 $ 36,423 $ 51,380 $ 66,784 $ 60,268 $ 50,304 $ 14,913 $ 9,870 $ 6,536 ======== ======== ======== ======== ========= ========== ======== ======== ======== Other Financial Data: EBITDA(3)............... $ 62,208 $ 76,687 $107,230 $135,664 $ 130,705 $ 170,298 $ 31,168 $ 25,237 $ 33,466 Cash flows from operations............. 64,514 43,587 56,814 103,371 63,047 1,112 11,077 Cash flows from investing.............. (7,352) (75,570) (58,618) (69,416) (109,037) (35,555) (5,431) Cash flows from financing.............. (58,185) 29,520 496 (34,422) 50,006 42,595 (11,451) Capital expenditures.... 8,396 12,040 11,678 13,714 13,415 43,724 4,853 5,336 8,532 Ratio of total debt to EBITDA................. 1.4x 1.7x 1.3x 0.8x 1.7x 3.3x 5.7x 8.3x 16.9x Ratio of EBITDA to interest expense....... 6.8x 12.3x 11.0x 12.6x 9.0x 3.6x 12.4x 6.2x 2.8x Ratio of earnings to fixed charges(4)....... 5.0x 8.9x 8.6x 9.5x 6.5x 2.7x 8.4x 4.2x 1.9x
As of March 31, 2001 ---------------------- Actual Pro Forma (2) -------- ------------- Balance sheet data: Cash and cash equivalents................................ $ 8,186 $ 47,608 Total assets............................................. 641,782 1,112,705 Total debt............................................... 209,278 566,142 Stockholders' equity..................................... 241,966 238,548
5 - ------- (1) Includes the results of Marinette Marine Corporation only from November 20, 2000, the date of its acquisition. (2) Pro forma for the acquisition of Potain and related financing transactions assuming the acquisition of Potain and related financing transactions occurred on January 1, 2000 for purposes of preparing the pro forma statements of earnings for the year ended December 31, 2000 and January 1, 2001 for the three month period ended March 31, 2001, respectively, and on March 31, 2001 for purposes of preparing the pro forma balance sheet. (3) EBITDA consists of earnings from operations plus depreciation and amortization. We have presented EBITDA information solely as a supplemental disclosure because management believes that it is generally accepted as providing useful information regarding a company's ability to service and/or incur debt. EBITDA should not be construed as an alternative to earnings from operations as determined in accordance with generally accepted accounting principles as an indicator of our operating performance, or as an alternative to cash flows from operating activities as determined in accordance with generally accepted accounting principles as a measure of liquidity. We have significant uses of cash flows, including capital expenditures and debt principal repayments that are not reflected in EBITDA. It should also be noted that not all companies that report EBITDA information calculate EBITDA in the same manner as we do. (4) For purposes of computing the ratio of earnings to fixed charges, earnings consists of earnings from operations before income taxes and fixed charges, excluding capitalized interest. Fixed charges consist of interest expensed and capitalized, amortization of debt issuance costs and the interest component of rent expense. (5) Pro forma net earnings excludes an extraordinary loss (approximately $3.4 million, net of income tax effects) related to the early extinguishment of our existing debt which will be paid from the proceeds of the financing upon consummation of this offering. 6 The Exchange Offer In this exchange offer, we are offering to exchange your old notes for new notes, which are identical in all material respects to the old notes except that the new notes have been registered under the Securities Act. The summary below describes the principal terms of the exchange offer. The "Exchange Offer" section of this prospectus contains a more detailed description of the exchange offer. Old Notes.......................................... On May 9, 2001, we completed a private offering of (Euro)175.0 million aggregate principal amount of 10 3/8% senior subordinated notes due 2011, which we refer to in this prospectus as the old notes. Registration Rights Agreements..................... Simultaneously with the sale of the old notes, we entered into a registration rights agreement, which provides for the exchange offer. The exchange offer satisfies your rights under the registration rights agreement. After the exchange offer is over, you will not be entitled to any exchange or registration rights with respect to your old notes, except under limited circumstances. The Exchange Offer................................. We are offering to exchange the old notes for up to (Euro)175.0 million aggregate principal amount of 10 3/8% senior subordinated notes due 2011 that have been registered under the Securities Act, which we refer to in this prospectus as the new notes. You may exchange old notes only in integral multiples of (Euro)1,000 principal amount. Expiration of the Exchange Offer................... The exchange offer will expire at 5:00 p.m., New York City time, on , 2001, or a later date and time to which we may extend it. Withdrawal......................................... You may withdraw your tender of old notes pursuant to the exchange offer at any time before expiration of the exchange offer. We will return any old notes not accepted for exchange for any reason without expense to you promptly after the expiration or termination of the exchange offer. Conditions to the Exchange Offer................... The exchange offer is subject to customary conditions, which we may waive. Please read the caption "The Exchange Offer--Conditions to the Exchange Offer" for more information regarding the conditions to the exchange offer. Acceptance of Old Notes and Delivery of New Notes.. We will accept and exchange any and all old notes that are validly tendered in the exchange offer and not withdrawn before the exchange offer expires. The new notes will be delivered promptly following the exchange offer.
7 Resale of New Notes.................. We believe that the new notes issued pursuant to the exchange offer in exchange for old notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act if: . you are not our "affiliate" within the meaning of Rule 405 under the Securities Act; . you are acquiring the new notes in the ordinary course of your business; and . you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the new notes. If you are an affiliate of ours, or are engaging in or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the new notes, then: . you will not be permitted to tender old notes in the exchange offer; and . you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the old notes. Each participating broker-dealer that receives new notes for its own account under the exchange offer in exchange for old notes that were acquired by the broker-dealer as a result of market- making or other trading activity must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. See the caption "Plan of Distribution." Consequences of Failing to Exchange.. If you are a holder of old notes and you do not tender your old notes in the exchange offer, then you will continue to hold your old notes and will be entitled to all the rights and subject to all the limitations applicable to the old notes in the indenture. All untendered old notes will remain subject to the restrictions on transfer provided for in the old notes and in the indenture. Generally, untendered old notes will remain restricted securities and may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the old notes under the Securities Act. The trading market for old notes could be adversely affected if some but not all of the old notes are tendered and accepted in the exchange offer.
8 Federal Income Tax The exchange of old notes for new notes in Considerations................. the exchange offer will not be a taxable event for U.S. federal income tax purposes. See the caption "United States Federal Income Tax Considerations" for a more detailed description of the tax consequences of the exchange. Use of Proceeds................. We will not receive any cash proceeds from the issuance of new notes pursuant to the exchange offer. Exchange Agent.................. The Bank of New York is the exchange agent for the exchange offer. The address and telephone number of the exchange agent are set forth under the caption "The Exchange Offer--Exchange Agent."
9 The New Notes The new notes will evidence the same debt as the old notes and will be governed by the same indenture under which the old notes were issued. The summary below describes the principal terms of the new notes. The "Description of the New Notes" section of this prospectus contains a more detailed description of the terms and conditions of the new notes. Issuer.................... The Manitowoc Company, Inc. Securities Offered........ (Euro)175,000,000 principal amount of 10 3/8% senior subordinated notes due 2011. Maturity.................. May 15, 2011. Interest Rate............. 10 3/8% per year (calculated using a 360-day year). Interest Payment Dates.... Each May 15 and November 15, beginning on November 15, 2001. Interest will accrue from the issue date of the new notes. Ranking................... The new notes will: . be our unsecured senior subordinated obligations; and . rank junior to all of our existing and future senior debt, including borrowings under our senior credit facility. The guarantees by our subsidiaries will: . be unsecured senior subordinated obligations of each of those subsidiaries; and . rank junior to all existing and future senior debt of those subsidiaries, including guarantees of borrowings under our senior credit facility. As of March 31, 2001, pro forma for the acquisition of Potain and related financing transactions, we estimate that we and our subsidiaries would have had $411.4 million of senior debt, excluding approximately $80.6 million that would have been available to borrow under our senior credit facility. Guarantees................ All of our domestic subsidiaries will unconditionally, jointly and severally, guarantee the new notes. If we create or acquire a new subsidiary that guarantees any of our other debt, it will guarantee the new notes unless we designate the subsidiary as an "unrestricted subsidiary" under the indenture. Optional Redemption....... We cannot redeem the new notes until May 15, 2006. Thereafter we may redeem some or all of the notes at the redemption prices listed in the "Description of the New Notes" section under the heading "Optional Redemption" plus accrued and unpaid interest including additional interest, if any. Optional Redemption After Public Equity Offerings... At any time, which may be more than once, before the third anniversary of the issue date of the old notes, we can choose to redeem up to 35% of the outstanding notes with money that we raise in one or more public equity offerings, as long as: 10 . we pay 110.375% of the face amount of the new notes, plus accrued and unpaid interest and additional interest, if any; . we redeem the new notes within 90 days of completing the public equity offering; and . at least 65% of the aggregate principal amount of notes issued remains outstanding afterwards. Change of Control Offer... If we undergo a change of control, we must give holders of the new notes the opportunity to sell us their new notes at 101% of the face amount, plus accrued and unpaid interest and additional interest, if any. We may not be able to pay you the required price for new notes you present to us at the time of a change of control, because: . we may not have enough funds at that time; or . the terms of our senior debt may prevent us from paying. Asset Sale Proceeds....... If we or our subsidiaries engage in asset sales, we generally must either invest the net cash proceeds from these sales in our business within a period of time, prepay senior debt or make an offer to purchase a principal amount of the new notes equal to the excess net cash proceeds. The purchase price of the new notes will be 100% of the face amount, plus accrued and unpaid interest and additional interest, if any. Restrictive Covenants..... The indenture governing the new notes will contain covenants limiting our and most or all of our subsidiaries' ability to: . incur additional debt or enter into sale and leaseback transactions; . pay dividends or distributions on our capital stock or repurchase our capital stock; . issue stock of subsidiaries; . make certain investments; . create liens on our assets to secure debt; . enter into transactions with affiliates; . merge or consolidate with another company; and . transfer and sell assets. These covenants are subject to a number of important limitations and exceptions. Absence of Market for the New Notes................. The new notes will be a new issue of securities with no established trading market. We will apply to list the new notes on the Luxembourg Stock Exchange in accordance with its rules after the completion of the exchange offer. However, we cannot provide any assurance as to the development or liquidity of any market for the new notes. 11 RISK FACTORS Before you decide to exchange your old notes for new notes, you should carefully consider the following factors in addition to the other information contained in this prospectus. Risks Related to the Exchange Offer and the New Notes You may have difficulty selling the old notes that you do not exchange. If you do not exchange your old notes for the new notes offered in this exchange offer, then you will continue to be subject to the restrictions on the transfer of your old notes. Those transfer restrictions are described in the indenture governing the new notes and in the legend contained on the old notes, and arose because we originally issued the old notes under exemptions from, and in transactions not subject to, the registration requirements of the Securities Act. In general, you may offer or sell your old notes only if they are registered under the Securities Act and applicable state securities laws, or if they are offered and sold under an exemption from those requirements. We do not intend to register the old notes under the Securities Act. If a large number of old notes are exchanged for new notes issued in the exchange offer, then it may be more difficult for you to sell your unexchanged old notes. In addition, if you do not exchange your old notes in the exchange offer, then you will no longer be entitled to have those notes registered under the Securities Act. See "The Exchange Offer--Consequences of Failing to Exchange Old Notes" for a discussion of the possible consequences of failing to exchange your old notes. Our substantial leverage may impair our financial condition. We currently have a substantial amount of debt. As of March 31, 2001, after giving effect to the acquisition of Potain and related financing transactions, including the issuance of the old notes, as if these transactions occurred on March 31, 2001, our total consolidated debt would have been $566.1 million. See "Capitalization" for additional information. Our substantial debt could have important consequences to you, including: . making it more difficult for us to satisfy our obligations with respect to the new notes; . increasing our vulnerability to general adverse economic and industry conditions; . requiring a substantial portion of our cash flow from operations be used for the payment of interest on our debt, which will reduce our ability to use our cash flow to fund working capital, capital expenditures, acquisitions and general corporate requirements; . limiting our ability to obtain additional financing to fund future working capital, capital expenditures, acquisitions and general corporate requirements; . limiting our flexibility in planning for, or reacting to, changes in our business and the industries in which we operate; and . placing us at a competitive disadvantage to other less leveraged competitors. Subject to specified limitations, the indenture will permit us and our subsidiaries to incur substantial additional debt. In addition, our new senior credit facility will permit us and our subsidiaries to borrow up to an additional $50.0 million, all of which borrowings would be senior to the new notes. If new debt is added to our and our subsidiaries' current debt levels, then the related risks that we and they now face could intensify. See "Description of Indebtedness" for additional information. 12 Servicing our debt will require a significant amount of cash and our ability to generate sufficient cash depends on many factors, some of which are beyond our control. Our ability to make payments on and refinance our debt and to fund planned capital expenditures depends on our ability to generate cash flow in the future. To some extent, this is subject to general economic, financial, competitive, legislative and regulatory factors and other factors that are beyond our control. In addition, our ability to borrow funds under our senior credit facility in the future will depend on our meeting the financial covenants contained in the credit agreement for our senior credit facility, including a minimum consolidated interest coverage ratio test and maximum consolidated senior and total leverage ratio tests. As of March 31, 2001, we would have used $43.6 million of our new $125.0 million revolving credit facility to effect the acquisition of Potain. The undrawn amount under our revolving credit facility is available for general corporate purposes. As of March 31, 2001, we also had outstanding letters of credit of $0.8 million and, accordingly, after giving effect to the acquisition of Potain and related financing transactions, including the issuance of the old notes, as if these transactions occurred on March 31, 2001, approximately $80.6 million would have been available for general corporate purposes under our revolving credit facility. We cannot assure you that our business will generate cash flow from operations or that future borrowings will be available to us under our senior credit facility in an amount sufficient to enable us to pay our debt or to fund other liquidity needs. As a result, we may need to refinance all or a portion of our debt on or before maturity. Our senior credit facility matures in stages between 2006 and 2007. We cannot assure you that we will be able to refinance any of our debt on favorable terms, if at all. Any inability to generate sufficient cash flow or refinance our debt on favorable terms could have a material adverse effect on our financial condition. Covenant restrictions under our senior credit facility and the indenture may limit our ability to operate our business. Our senior credit facility and the indenture governing the notes contain covenants that may restrict our and the guarantors' ability to finance future operations or capital needs or to engage in other business activities. Our senior credit facility and the indenture restrict our ability and the ability of our restricted subsidiaries to: . borrow money, pay dividends or make distributions; . purchase or redeem stock; . make investments and extend credit; . engage in transactions with affiliates; . engage in sale-leaseback transactions; . consummate certain asset sales; . effect a consolidation or merger or sell, transfer, lease or otherwise dispose of all or substantially all of our assets; and . create liens on our assets. In addition, our senior credit facility requires us to maintain specified financial ratios and satisfy certain financial condition tests, which may require that we take action to reduce our debt or to act in a manner contrary to our business objectives. Events beyond our control, including changes in general business and economic conditions, may affect our ability to meet those financial ratios and financial condition tests. We cannot assure you that we will meet those tests or that the lenders will waive any failure to meet those tests. A breach of any of these covenants would result in a default under our senior credit facility and any resulting acceleration under the senior credit facility may result in a default under the indenture. If an event of default under our senior credit facility occurs, the lenders could elect to declare all amounts outstanding under the senior credit facility, together with accrued interest, to be immediately due and payable. See the "Description of Indebtedness" and "Description of the New Notes" for additional information. 13 Your right to receive payment on the notes and the guarantees is junior to all of our and the guarantors' senior debt. The new notes will be general unsecured obligations, junior in right of payment to all of our and the guarantors' existing and future senior debt, including obligations under our senior credit facility. The new notes will not be secured by any of our or the guarantors' assets, and as such will be effectively subordinated to any secured debt that we or the guarantors may have now or may incur in the future to the extent of the value of the assets securing that debt. In the event that we or a guarantor are declared bankrupt, become insolvent or are liquidated or reorganized, any debt that ranks senior to the notes and the guarantees will be entitled to be paid in full from our assets or the assets of the guarantor, as applicable, before any payment may be made with respect to the notes or the affected guarantees. In any of the foregoing events, we cannot assure you that we would have sufficient assets to pay amounts due on the new notes. As a result, you may receive less, proportionally, than the holders of debt senior to the new notes and the guarantees of the new notes. The subordination provisions of the indenture also provides that we can make no payment to you during the continuance of payment defaults on our senior debt, and payments to you may be suspended for a period of up to 180 days if a nonpayment default exists under our senior debt. The new notes also will be effectively subordinated to debt of our restricted subsidiaries that are not guarantors. See "Description of the New Notes-- Subordination" for additional information. At March 31, 2001, after giving effect to the acquisition of Potain and related financing transactions, including the issuance of the old notes, as if these transactions occurred on March 31, 2001, the notes and the guarantees would have ranked junior to $411.4 million of our and our subsidiaries' senior debt and an additional $80.6 million of unused availability would have been available to borrow under our senior credit facility. In addition, the indenture and our senior credit facility will permit, subject to specified limitations, the incurrence of additional debt, some or all of which may be senior debt. See "Description of the New Notes--Certain Covenants" and "Description of Indebtedness" for additional information. If our subsidiaries do not make sufficient distributions to us, we will not be able to make payment on our debt, including the new notes. We are a holding company with no material operations and only limited assets. Because a significant portion of our operations are conducted by our subsidiaries, our cash flow and our ability to service indebtedness, including our ability to pay the interest on and principal of the new notes, are dependent to a large extent upon cash dividends and distributions or other transfers from our subsidiaries. In addition, any payment of dividends, distributions, loans or advances by our subsidiaries to us could be subject to restrictions on dividends or repatriation of earnings under applicable local law, monetary transfer restrictions and foreign currency exchange regulations in the jurisdictions in which our subsidiaries operate, and any restrictions imposed by the current and future debt instruments of our subsidiaries. These payments to us by our subsidiaries are contingent upon our subsidiaries' earnings. Our subsidiaries are separate and distinct legal entities and, except for the guarantors of the new notes, have no obligation, contingent or otherwise, to pay any amounts due pursuant to the new notes or to make any funds available therefor, whether by dividends, loans, distributions or other payments, and do not guarantee the payment of interest on, or principal of, the new notes. Any right that we have to receive any assets of any of our subsidiaries that are not guarantors upon the liquidation or reorganization of any such subsidiary, and the consequent right of holders of new notes to realize proceeds from the sale of their assets, will be effectively subordinated to the claims of that subsidiary creditors, including trade creditors and holders of debt issued by the subsidiary. The guarantees may not be enforceable because of fraudulent conveyance laws. The incurrence of the guarantees by the guarantors may be subject to review under U.S. federal bankruptcy law or relevant state fraudulent conveyance laws if a bankruptcy case or lawsuit is commenced by or on behalf 14 of the guarantors' unpaid creditors. Under these laws, if in such a case or lawsuit a court were to find that, at the time such guarantor incurred a guarantee of the new notes such guarantor: . incurred the guarantee of the new notes with the intent of hindering, delaying or defrauding current or future creditors; or . received less than reasonably equivalent value or fair consideration for incurring the guarantee of the new notes and such guarantor: . was insolvent or rendered insolvent; . was engaged, or about to engage, in a business or transaction for which its remaining assets constituted unreasonably small capital to carry on its business; or . intended to incur, or believed that it would incur, debts beyond its ability to pay as these debts matured; then such court could avoid the guarantee of such guarantor or subordinate the amounts owing under the guarantee to the guarantor's presently existing or future debt or take other actions detrimental to you. It may be asserted that the guarantors incurred their guarantees for our benefit and they incurred the obligations under the guarantees for less than reasonably equivalent value or fair consideration. The measure for insolvency for purposes of those considerations will vary depending on the law of the jurisdiction that is being applied in any such proceeding. Generally, a company would be considered insolvent if, at the time it incurred the debt or issued the guarantee, either: . the sum of its debts, including contingent liabilities, is greater than its assets, at fair valuation, or . the present fair saleable value of its assets is less than the amount required to pay the probable liability on its total existing debts and liabilities, including contingent liabilities, as they become absolute and matured. If a guarantee is avoided as a fraudulent conveyance or found to be unenforceable for any other reason, you will not have a claim against that obligor and will only be a creditor of ours and any guarantor whose obligation was not set aside or found to be unenforceable. No public market exists for the new notes, and any market for the new notes may be illiquid. The new notes are a new issue of securities with no established trading market. We will apply to list the new notes on the Luxembourg Stock Exchange in accordance with its rules upon completion of the exchange offer. The initial purchaser for the old notes has informed us that it intends to make a market in the notes. However, the initial purchaser is not obligated to do so, and may cease market-making activities at any time. As a result, you cannot be sure that an active trading market will develop for the new notes. In addition, the liquidity of the trading market for the new notes, if any, and the market price quoted for the new notes, may be adversely affected by changes in the interest rates in the market for high yield securities and by changes in our financial performance or prospects, or in the prospects of companies in similar industries. We may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture. Upon a change of control, we are required to offer to repurchase all outstanding new notes at 101% of the face amount thereof, plus accrued and unpaid interest, if any, to the date of repurchase. The source of funds for any such purchase of new notes will be our available cash or cash generated from our subsidiaries' operations or other sources, including borrowing, sales of assets or sales of equity. We cannot 15 assure you that sufficient funds will be available at the time of any change of control to make any required repurchases of new notes tendered. In addition, the terms of our senior credit facility limit our ability to repurchase your new notes in those circumstances. Any of our future debt agreements may contain similar restrictions and provisions. If the holders of the new notes exercise their right to require us to repurchase all of the new notes upon a change of control, the financial effect of this repurchase could cause a default under our other debt, even if the change of control itself would not cause a default. Accordingly, it is possible that we will not have sufficient funds at the time of the change of control to make the required repurchase of notes or that restrictions in our senior credit facility will not allow such repurchases. See "Description of the New Notes--Change of Control" and "Description of Indebtedness" for additional information. Risks Related to Our Business Some of our markets are cyclical and a decline in any of these markets could have a material adverse effect on our operating performance. Historically, sales of products we manufacture and sell have been subject to cyclical variations caused by changes in general economic conditions. In particular, our cranes segment is highly cyclical and is impacted by the strength of the economy generally, interest rates and other factors that may have an effect on the level of construction activity, either nationally or regionally. During periods of expansion in construction activity, we generally have benefited from increased demand for our products. Conversely, during recessionary periods, we have been adversely affected by reduced demand for our products. The U.S. construction industry is currently experiencing a downturn, which is adversely affecting suppliers to the construction industry, including our cranes segment. We cannot assure you that this downturn will not continue or become more severe. In addition, the strength of economies generally may affect the rates of expansion, renovation and equipment replacement within the restaurant, lodging, convenience store and healthcare industries, which may affect the performance of our foodservice equipment segment. Furthermore, an economic recession may impact substantially leveraged companies, such as us, more than competing companies with less leverage and may have a material adverse effect on our financial condition, results of operations and ability to service debt. A substantial portion of our growth has come through acquisitions and we may not be able to identify or complete future acquisitions, which could adversely affect our future growth. Our growth strategy is based in part upon acquisitions. We may not be able to identify and successfully negotiate suitable acquisitions, obtain financing for future acquisitions on satisfactory terms or otherwise complete acquisitions in the future. If we complete any future acquisitions, then we may not be able to successfully integrate the acquired businesses or operate them profitably or accomplish our strategic objectives as a result of those acquisitions. Our level of indebtedness may increase in the future if we finance acquisitions with debt, which would cause us to incur additional interest expense and could increase our vulnerability to general adverse economic and industry conditions and limit our ability to service our debt or obtain additional financing. We cannot assure you that future acquisitions will not have a material adverse effect on our financial condition, results of operations and debt service capability. Our future success depends on our ability to effectively integrate acquired companies and manage our growth. Our growth has placed, and will continue to place, significant demands on our management and operational and financial resources. With the completion of the acquisition of Potain, we have completed ten acquisitions since January 1, 1998, and our number of employees has increased from approximately 3,000 to 5,440 since January 1, 1998. Realization of the benefits of our acquisition of Potain and any future acquisitions will require integration of the acquired companies' sales and marketing, distribution, manufacturing, engineering, finance and administrative organizations. The successful integration of these companies will require substantial attention from our senior management and the management of the acquired companies, which will decrease the time they have to service and attract customers and develop new products and services. 16 We cannot assure you that we will be able to integrate successfully Potain or any future acquisitions, that these acquired companies will operate profitably or that the beneficial effect from these acquisitions will be obtained. Our financial condition, results of operations and debt service capabilities could be materially and adversely affected if we do not successfully integrate Potain or any future companies we may acquire or if we do not manage our growth effectively. Because we participate in industries that are intensely competitive, our revenues could decline as we respond to competition. We sell all of our products in highly competitive industries. We compete in each of our industries based on product design, quality of products and services, product performance, maintenance costs and price. Several of our competitors have greater financial, marketing, manufacturing and distribution resources than us. We cannot assure you that our products and services will continue to compete successfully with those of our competitors or that we will be able to retain our customer base or improve or maintain our profit margins on sales to our customers, all of which could materially and adversely affect our financial condition, results of operations and debt service capability. Price increases in some materials and sources of supply could affect our profitability. We use large amounts of steel, stainless steel, aluminum, copper and electronic controls in the manufacture of our products. Recently, the prices of some of these materials have increased significantly. For example, the base price of stainless steel has increased on three occasions since July 1999. There have also been several changes in the surcharge base levels of nickel and chrome. These changes have the effect of increasing our overall price for stainless steel, a significant raw material for our foodservice segment. If we are not able to pass future raw material price increases on to our customers, our margins could be adversely affected. We increasingly manufacture and sell our products outside of the United States, which may present additional risks to our business. For the year ended December 31, 2000, on a pro forma basis, approximately 29% of our net sales were attributable to products sold outside of the United States, and expanding international sales is part of our growth strategy. With the acquisition of Potain, we have over 2,300 employees and eight manufacturing facilities located in Europe and Asia. International operations generally are subject to various risks, including political, religious and economic instability, local labor market conditions, the imposition of foreign tariffs and other trade business, the impact of foreign government regulations and the effects of income and withholding tax, governmental expropriation and differences in business practices. We may incur increased costs and experience delays or disruptions in product deliveries and payments in connection with international manufacturing and sales that could cause loss of revenue. Unfavorable changes in the political, regulatory and business climate and currency devaluations could have a material adverse effect on our financial condition, results of operations and debt service capability. We depend on our key personnel and the loss of these personnel could have an adverse affect on our business. Our success depends to a larger extent upon the continued services of our key executives, managers and skilled personnel. Generally, our employees are not bound by employment or non-competition agreements, and we cannot assure you that we will retain our key officers and employees. We could be seriously harmed by the loss of key personnel. Our failure to protect our intellectual property rights or maintain our rights to use licensed intellectual property could adversely affect our business. Our patents, trademarks and licenses are important in the operation of our business. Although we intend to protect our intellectual property rights vigorously, we cannot assure you that we will be successful in doing so. 17 Third parties may assert or prosecute infringement claims against us in connection with the services and products we offer, and we may or may not be able to successfully defend these claims. Litigation, either to enforce our intellectual property rights or to defend us against claimed infringement of the rights of others, could result in substantial costs to us and in a diversion of our resources. In addition, if a third party made a valid claim, then we would likely need to obtain a license from the third party on commercial terms, which would likely increase our costs. Our failure to maintain or obtain necessary licenses or an adverse outcome in any litigation relating to patent infringement or other intellectual property matters could have a material adverse effect on our financial condition, results of operations and debt service capability. Our results of operations may be negatively impacted by product liability lawsuits. Our businesses expose us to potential product liability risks that are inherent in the design, manufacture and sale of our products. While we currently maintain what we believe to be suitable product liability insurance, we cannot assure you that we will be able to maintain this insurance on acceptable terms or that this insurance will provide adequate protection against potential liabilities. In addition, we self-insure a portion of product liability claims. A successful claim against us could materially and adversely affect our reputation and our financial condition, results of operations and debt service capability. Compliance with environmental laws and clean-up of environmental contamination could be costly. Our activities are subject to a wide range of supranational (e.g., European Union), national, provincial, state and local environmental laws and regulations in each jurisdiction in which we operate. These laws regulate, among other things: . air emissions; . wastewater discharges; . the generation, storage, treatment, transportation and disposal of hazardous materials; . the investigation and remediation of soil and groundwater contamination associated with the use and disposal of hazardous materials; and . in some circumstances, the condition of industrial property prior to transfer or sale. These environmental laws and regulations are constantly changing, as are the priorities of those who enforce them. We have incurred, and will continue to incur, costs for compliance with, and liability under, environmental laws and regulations. Although we believe that we are currently in substantial compliance with those laws and regulations, future regulatory changes, government enforcement initiatives, identification of currently unknown non-compliance, or new or modified projects could cause us or our subsidiaries to incur additional liabilities, compliance costs or penalties, which could be material. In addition to environmental laws and regulations that regulate our operations, we are also subject to environmental laws and regulations that create liability and clean-up responsibility for spills, disposals or other releases of hazardous materials into the environment. We use and generate hazardous materials and wastes in our operations. At our facilities in the U.S., France and elsewhere, we may be subject to substantial claims brought by regulators or private individuals. Environmental laws and regulations may impose liability, without regard to fault or legality of the original conduct, on classes of persons that are considered to have contributed to the release of hazardous materials into the environment. These persons can include the owner or operator of the disposal site or the site where the release occurred and companies that disposed of or arranged for the disposal of the hazardous materials at the site where the release occurred. Under these laws and regulations, including those in the U.S., these persons can be subject to joint and several liability for the costs of cleaning up the hazardous materials that have been released into the environment and for damages to natural resources, and it is not uncommon for neighboring landowners and other third parties to file claims for personal injury and property damage allegedly caused by the hazardous materials released into the environment. These laws and 18 regulations, including those in the U.S., such as the U.S. Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, can impose the entire cost of site remediation upon a company that releases waste at a disposal site, regardless of fault. As a practical matter, however, costs generally are shared with other potentially responsible parties, based on each potentially responsible party's relative contribution to the problem. At certain of our facilities, we have identified potential contaminants in soil and ground water but, based on available information, we do not expect the cost to address them to be substantial. We have been identified as a potentially responsible party under CERCLA in connection with the Lemberger Landfill Superfund Site near Manitowoc, Wisconsin. Based on the relative size of our contribution to this site, the existence of other viable potentially responsible parties and current reserves, we do not believe that any liability imposed in connection with this site will have a material adverse effect on our financial condition, results of operations or debt service capability. Environmental laws and regulations also govern the presence, maintenance and removal of asbestos-containing building materials, or ACBM. Such laws may impose fines and penalties on building owners or operators for failure to comply with these requirements and may allow third parties to seek recovery from owners or operators for personal injury associated with exposure to asbestos fibers. Some of our facilities and/or products may contain ACBM. Stricter enforcement of existing environmental laws and regulations, new environmental laws and regulations, discovery of previously unknown contamination or imposition of new or increased requirements could require us to incur costs or could become the basis of new or increased liabilities that could have a material adverse effect on financial condition, results of operations or debt service capability. The adoption of the euro may lower our profits. On January 1, 1999, eleven member countries of the European Union adopted the euro, fixing translation rates between those countries' existing national currencies and the euro. Until January 1, 2002, either the euro or a participating country's national currency will be accepted as legal currency. Beginning on January 1, 2002, only euro-denominated bills and coins will be issued, and national currencies will be withdrawn from circulation. The use of a common currency throughout Europe may permit the prices of our products to be more readily compared. This may lead to uniform pricing of our products in countries in the European Union. Uniform pricing may adversely affect our profits. To date, the adoption of the euro has not been a factor in any of our pricing practices and has not adversely affected our profits. We are exposed to the risk of foreign currency fluctuations. Some of our operations are or will be conducted by subsidiaries in foreign countries. The results of the operations and the financial position of these subsidiaries will be reported in the relevant foreign currencies and then translated into U.S. dollars at the applicable exchange rates for inclusion in our consolidated financial statements which are stated in U.S. dollars. The exchange rates between many of these currencies and the U.S. dollar have fluctuated significantly in recent years and may fluctuate significantly in the future. Such fluctuations may have a material effect on our results of operations and financial position and may significantly affect the comparability of our results between financial periods. In addition, we will incur currency transaction risk whenever one of our operating subsidiaries enters into a transaction using a different currency than its functional currency. We will attempt to reduce currency transaction risk whenever one of our operating subsidiaries enters into a transaction using a different currency than its functional currency. We will attempt to reduce currency transaction risk by: . matching cash flows and payments in the same currency; . direct foreign currency borrowing; and . entering into foreign exchange contracts for hedging purposes. 19 However, we may not be able to hedge this risk completely or at an acceptable cost, which may adversely affect our results of operations and financial condition. Principal and interest on the new notes will be payable in euros. Our ability to pay interest and principal on the new notes when due is in part dependent on the then current exchange rates between euros, on the one hand, and the U.S. dollar and other European currencies, as well as U.S. and other national currencies that our sales are denominated in, on the other hand, which rates are and will be subject to fluctuation. We cannot assure you that exchange rate fluctuations will not have a material adverse effect on our results of operations and financial condition and therefore on our ability to make principal and interest payments on our debt, including the new notes, when due. DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS All statements other than statements of historical facts included in this prospectus, including statements regarding our future financial position, business strategy, budgets, projected costs and plans and objectives for future operations included in the sections "Prospectus Summary," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Business," are "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements generally can be identified by the use of forward-looking words such as "may," "will," "expect," "intend," "estimate," "anticipate," "believe," or "continue" or words of similar meaning. These statements are subject to risks and uncertainties that could cause actual results to differ materially from those anticipated as of the date of this prospectus. Factors that could cause such a variance are disclosed in the section "Risk Factors" and elsewhere in this prospectus and include the following: . We have a significant amount of debt, which could restrict our future operating and strategic flexibility and expose us to the risks of financial leverage. . Our ability to meet our debt service obligations on the notes and our other debt will depend on our future performance, which will be subject to many factors that are beyond our control. . Some of our markets are cyclical and a decline in these markets could have a material adverse effect on our operating performance. . We may not be able to effectively integrate acquired companies or manage our growth. . We are subject to risks of competition from other companies that operate in our industries. We urge you to consider these factors and to review carefully the section "Risk Factors" for a more complete discussion of the risks of an investment in the notes. The forward-looking statements included in this prospectus are made only as of the date of this prospectus, and we undertake no obligation to publicly update these statements to reflect subsequent events or circumstances. 20 THE EXCHANGE OFFER Purpose and Effect of the Exchange Offer When we issued the old notes on May 9, 2001, we entered into a registration rights agreement with the initial purchaser of the old notes. A copy of the registration rights agreement is filed as an exhibit to the registration statement of which this prospectus is a part. Under the registration rights agreement, we agreed to: . file and cause to become effective a registration statement with respect to an offer to exchange the old notes for new notes that have been registered under the Securities Act; or . file and cause to become effective a shelf registration statement with respect to the resale of the old notes. If we complete the exchange offer within 180 days after the issuance of the old notes, then we will satisfy those requirements under the registration rights agreements. If we do not complete the exchange offer within 180 days of the issuance of the old notes and a shelf registration statement has not been declared effective, then we will be required to pay liquidated damages to the holders of the old notes. Terms of the Exchange Offer As of the date of this prospectus, (Euro)175.0 million aggregate principal amount of the old notes are outstanding. This prospectus and the accompanying letter of transmittal together constitute the exchange offer. This prospectus and the letter of transmittal are being sent to all registered holders of old notes. There will be no fixed record date for determining registered holders of old notes entitled to participate in the exchange offer. Upon the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal, we will accept for exchange any old notes properly tendered and not withdrawn before expiration of the exchange offer. We will issue (Euro)1,000 principal amount of new notes in exchange for each (Euro)1,000 principal amount of old notes surrendered under the exchange offer. Old notes may be tendered only in integral multiples of (Euro)1,000. The exchange offer is not conditioned upon any minimum aggregate principal amount of old notes being tendered for exchange. The form and terms of the new notes will be substantially identical to the form and terms of the old notes, except that the new notes: . will be registered under the Securities Act; . will not bear legends restricting their transfer under the Securities Act; and . Will not contain the registration rights and liquidated damages provisions contained in the old notes. The new notes will evidence the same debt as the old notes. The new notes will be issued under and entitled to the benefits of the same indenture that authorized the issuance of the old notes. For a description of the indenture, see the caption "Description of the New Notes." In connection with the exchange offer, holders of notes do not have any appraisal or dissenters' rights under applicable law or the Indenture. We intend to conduct the exchange offer in accordance with the applicable requirements of the Securities Act, the Securities Exchange Act of 1934 and the rules and regulations of the Securities and Exchange Commission, or SEC. The exchange offer is not being made to, nor will we accept tenders for exchange from, holders of old notes in any jurisdiction in which the exchange offer or the acceptance of it would not be in compliance with the securities or blue sky laws of the jurisdiction. Holders who tender old notes in the exchange offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of old 21 notes. We will pay all charges and expenses, other than applicable taxes described below, in connection with the exchange offer. It is important that you read the caption "--Fees and Expenses" for more details regarding fees and expenses incurred in the exchange offer. Expiration of the Exchange Offer; Extensions; Amendments The exchange offer will expire at 5:00 p.m., New York City time, on , 2001. We can extend the exchange offer in our sole discretion, in which case the term "expiration date" shall mean the latest date and time to which we extend the exchange offer. We will notify the exchange agent orally, confirmed in writing, or in writing, of any extension of the exchange offer. We will notify the registered holders of old notes by public announcement of the extension no later than 5:00 p.m., New York City time, on the business day after the previously scheduled expiration of the exchange offer. Without limiting the manner in which we may choose to make public announcements of any delay in acceptance, extension, termination or amendment of the exchange offer, we will have no obligation to publish, advertise, or otherwise communicate any public announcement, other than by making a timely release to a financial news service. Conditions to the Exchange Offer Despite any other term of the exchange offer, we will not be required to accept for exchange any old notes or to issue new notes in the exchange offer. We may terminate or amend the exchange offer as provided in this prospectus before accepting any old notes for exchange if in our reasonable judgment: . the new notes to be received will not be tradable by the holder, without restriction under the Securities Act and the Exchange Act and without material restrictions under the blue sky or securities laws of substantially all of the states of the United States; . the exchange offer, or the making of any exchange by a holder of old notes, would violate applicable law or any applicable interpretation of the staff of the SEC; or . any action or proceeding has been instituted or threatened in any court or by or before any governmental agency with respect to the exchange offer that would reasonably be expected to impair our ability to proceed with the exchange offer. We will not be obligated to accept for exchange the old notes of any holder that has not made to us: . the representations described under the captions, "--Procedures for Tendering" and "Plan of Distribution;" and . any other representations that may be reasonably necessary under applicable SEC rules, regulations or interpretations to make available to us an appropriate form for registration of the new notes under the Securities Act. We expressly reserve the right, at any time or at various times, to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any old notes by giving oral or written notice of an extension to their holders. During an extension, all old notes previously tendered will remain subject to the exchange offer, and we may accept them for exchange. We expressly reserve the right to amend or terminate the exchange offer and to reject for exchange any old notes not previously accepted for exchange, upon the occurrence of any of the conditions of the exchange offer specified above. By public announcement we will give oral or written notice of any extension, amendment, non-acceptance or termination to the holders of the old notes as promptly as practicable. If we amend the exchange offer in a manner that we consider material, we will disclose the amendment by means of a prospectus supplement. 22 These conditions are solely for our benefit and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any time or at various times in our sole discretion. If we fail at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of that right. Each of these rights will be deemed an ongoing right that we may assert at any time or at various times. We will not accept for exchange any old notes tendered, and will not issue new notes in exchange for any old notes, if at that time a stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indentures under the Trust Indenture Act of 1939. Procedures for Tendering We have forwarded to you, along with this prospectus, a letter of transmittal relating to this exchange offer. Because all the old notes are held in book-entry accounts maintained by the exchange agent at Euroclear Bank S.A./N.V., or Euroclear, or Clearstream Banking, societe anonyme, Luxembourg, or Clearstream Luxembourg, a holder need not submit a letter of transmittal if the holder tenders old notes in accordance with the procedures mandated Euroclear or Clearstream Luxembourg, as the case may be. To tender old notes without submitting a letter of transmittal, the electronic instructions sent to Euroclear or Clearstream Luxembourg and transmitted to the exchange agent must contain your acknowledgment of receipt of and your agreement to be bound by and to make all of the representations contained in the letter of transmittal. In all other cases, a letter of transmittal must be manually executed and delivered as described in this prospectus. To tender in the exchange offer, a holder must comply with the procedures of Euroclear or Clearstream Luxembourg, as applicable, and either: . complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal; have the signature on the letter of transmittal guaranteed if the letter is transmittal so requires; and deliver the letter of transmittal or facsimile to the exchange agent prior to the expiration date; or . in lieu of delivering a letter of transmittal, instruct Euroclear or Clearstream Luxembourg, as the case may be, to transmit on behalf of the holder an agent's message to the exchange agent, which agent's message must be received by the exchange agent prior to 5:00 p.m., New York City time, on the expiration date. In addition, either: . the exchange agent must receive the certificates for the old notes along with the letter of transmittal; or . the exchange agent must receive, before the expiration date, timely confirmation of the book-entry transfer of the old notes being tendered into the exchange agent's account at Euroclear or Clearstream Luxembourg according to the procedure for book-entry described below, along with the letter of transmittal or an agent's message. The term "agent's message" means a message, transmitted by Euroclear or Clearstream Luxembourg and received by the exchange agent, which states that Euroclear or Clearstream Luxembourg has received an express acknowledgment from a participant tendering old notes that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce that agreement against the participant. To be tendered effectively, the exchange agent must receive any physical delivery of the letter of transmittal and other required documents at the address set forth below under the caption "--Exchange Agent" before expiration of the exchange offer. To receive confirmation of valid tender of old notes, a holder should contact the exchange agent at the telephone number listed under the caption "--Exchange Agent." The tender by a holder that is not withdrawn before expiration of the exchange offer will constitute an agreement between that holder and us in accordance with the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal. Only a registered holder of old notes may tender the old notes in 23 the exchange offer. If a holder completing a letter of transmittal tenders less than all of the old notes held by that holder, then that tendering holder should fill in the applicable box of the letter of transmittal. The amount of old notes delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated. If old notes, the letter of transmittal or any other required documents are physically delivered to the exchange agent, the method of delivery is at the holder's election and risk. Rather than mail these items, we recommend that holders use an overnight or hand delivery service. In all cases, holders should allow sufficient time to assure delivery to the exchange agent before expiration of the exchange offer. Holders should not send the letter of transmittal or old notes to us. Holders may request their respective brokers, dealers, commercial banks, trust companies or other nominees to effect the above transactions for them. Any beneficial owner whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact the registered holder promptly and instruct it to tender on the owner's behalf. If the beneficial owner wishes to tender on its own behalf, then it must, prior to completing and executing the letter of transmittal and delivering its old notes, either: . make appropriate arrangements to register ownership of the old notes in the owner's name; or . obtain a properly completed bond power from the registered holder of old notes. The transfer of registered ownership may take considerable time and may not be completed prior to the expiration date. If the applicable letter of transmittal is signed by the record holder(s) of the old notes tendered, then the signature must correspond with the name(s) written on the face of the old note without alteration, enlargement or any change whatsoever. If the applicable letter of transmittal is signed by a participant in Euroclear or Clearstream Luxembourg, as applicable, then the signature must correspond with the name as it appears on the security position listing as the holder of the old notes. Except as set forth below, a signature on a letter of transmittal or a notice of withdrawal must be guaranteed by an eligible guarantor institution. Eligible guarantor institutions include banks, brokers, dealers, municipal securities dealers, municipal securities brokers, government securities dealers, government securities brokers, credit unions, national securities exchanges, registered securities associations, clearing agencies and savings associations. The signature need not be guaranteed by an eligible guarantor institution if the old notes are tendered: . by a registered holder of old notes who has not completed the box entitled "Special Registration Instructions" or "Special Delivery Instructions" on the letter of transmittal; or . for the account of an eligible institution. If the letter of transmittal is signed by a person other than the registered holder of any old notes, then the old notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder's name appears on the old notes and an eligible institution must guarantee the signature on the bond power. If the letter of transmittal or any old notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, then these persons should so indicate when signing. Unless we waive this requirement, they should also submit evidence satisfactory to us of their authority to deliver the letter of transmittal. We will determine in our sole discretion all questions as to the validity, form, eligibility, including time of receipt, acceptance and withdrawal of tendered old notes. Our determination will be final and binding. We reserve the absolute right to reject any old notes not properly tendered or any old notes the acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular old notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. 24 Unless waived, holders of old notes must cure any defects or irregularities in connection with tenders of old notes within the time that we determine. Although we intend to notify holders of defects or irregularities with respect to tenders of old notes, neither we, the exchange agent nor any other person will incur any liability for failure to give notification. Tenders of old notes will not be deemed made until those defects or irregularities have been cured or waived. Any old notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the exchange agent without cost to the tendering holder, unless otherwise provided in the letter of transmittal, as soon as practicable following the expiration date. By signing the letter of transmittal, or causing Euroclear or Clearstream Luxembourg, as applicable, to transmit an agent's message to the exchange agent, each tendering holder of old notes will represent to us that, among other things: . any new notes that the holder receives will be acquired in the ordinary course of its business; . the holder has no arrangement or understanding with any person or entity to participate in the distribution of the new notes; . if the holder is not a broker-dealer, that it is not engaged in and does not intend to engage in the distribution of the new notes; . if the holder is a broker-dealer that will receive new notes for its own account in exchange for old notes that were acquired as a result of market-making activities or other trading activities, that it will deliver a prospectus, as required by law, in connection with any resale of those new notes (see the caption "Plan of Distribution"); and . the holder is not our "affiliate," as defined in Rule 405 of the Securities Act, or, if the holder is our affiliate, it will comply with any applicable registration and prospectus delivery requirements of the Securities Act. If any holder or any such other person is our "affiliate," or is engaged in or intends to engage in or has an arrangement or understanding with any person to participate in a distribution of the new notes to be acquired in the exchange offer, then that holder or any such other person: . may not rely on the applicable interpretations of the staff of the SEC; . is not entitled and will not be permitted to tender old notes in the exchange offer; and . must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. Each broker-dealer who acquired its old notes as a result of market-making activities or other trading activities and thereafter receives new notes issued for its own account in the exchange offer, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes issued in the exchange offer. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. See "Plan of Distribution" for a discussion of the exchange and resale obligations of broker-dealers in connection with the exchange offer. Acceptance of Old Notes for Exchange; Delivery of New Notes Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, promptly after the expiration date, all old notes properly tendered and will issue the new notes registered under the Securities Act. For purposes of the exchange offer, we shall be deemed to have accepted properly tendered old notes for exchange when, as and if we have given oral or written notice to the exchange agent, with written confirmation of any oral notice to be given promptly thereafter. See "--Conditions to the Exchange Offer" for a discussion of the conditions that must be satisfied before we accept any old notes for exchange. 25 For each old note accepted for exchange, the holder will receive a new note registered under the Securities Act having a principal amount equal to, and in the denomination of, that of the surrendered old note. Accordingly, registered holders of new notes on the relevant record date for the first interest payment date following the consummation of the exchange offer will receive interest accruing from the most recent date to which interest has been paid or, if no interest has been paid on the old notes, from the date of issuance of the old notes. Old notes that we accept for exchange will cease to accrue interest from and after the date of consummation of the exchange offer. Under the registration rights agreement, we may be required to make additional payments in the form of liquidated damages to the holders of the old notes under circumstances relating to the timing of exchange offer. In all cases, we will issue new notes for old notes that we have accepted for exchange under the exchange offer only after the exchange agent timely received: . the certificates representing the old notes, or a timely confirmation from Euroclear or Clearstream Luxembourg of book-entry transfer of the old notes into the exchange agent's account; and . a properly completed and duly executed letter of transmittal, or in the case of a book-entry tender, a properly transmitted agent's message; and . all other required documents. Book-Entry Transfer The exchange agent has advised us that it will establish an account with respect to the old notes at Euroclear and Clearstream Luxembourg as book-entry transfer facilities, for purposes of the exchange offer within two business days after the date of this prospectus. Any financial institution that is a participant in the book-entry transfer facility's system may make book-entry delivery of old notes by causing the book-entry transfer facility to transfer the old notes into the exchange agent's account at the facility in accordance with the facility's procedures for transfer. However, although delivery of old notes may be effected through book-entry transfer at the facility, a properly completed and duly executed letter of transmittal or an agent's message, and any other required documents, must nonetheless be transmitted to, and received by, the exchange agent at the address set forth below under "--Exchange Agent" prior to the expiration date. Withdrawal of Tenders Except as otherwise provided in this prospectus, holders of old notes may withdraw their tenders at any time before expiration of the exchange offer. For a withdrawal to be effective, the exchange agent must receive a notice of withdrawal transmitted by Euroclear or Clearstream Luxembourg on behalf of the holder in accordance with the standard operating procedures of Euroclear or Clearstream Luxembourg, or a written notice of withdrawal, which may be by telegram, telex, facsimile transmission or letter, at one of the addresses set forth below under the caption "--Exchange Agent". Any notice of withdrawal must: . specify the name of the person who tendered the old notes to be withdrawn; . identify the old notes to be withdrawn, including the principal amount of the old notes to be withdrawn; and . where certificates for old notes have been transmitted, specify the name in which the old notes were registered, if different from that of the withdrawing holder. 26 If certificates for old notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of those certificates, the withdrawing holder must also submit: . the serial numbers of the particular certificates to be withdrawn; and . a signed notice of withdrawal with signatures guaranteed by an eligible institution, unless the withdrawing holder is an eligible institution. If old notes have been tendered pursuant to the procedure for book-entry transfer or the blocking procedures described above, any notice of withdrawal must specify the name and number of the account at Euroclear or Clearstream Luxembourg, as applicable, to be credited with the withdrawn old notes and otherwise comply with the procedures of the facility. We will determine all questions as to the validity, form and eligibility, including time of receipt, of notices of withdrawal, and our determination shall be final and binding on all parties. We will deem any old notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer. We will return any old notes that have been tendered for exchange but that are not exchanged for any reason to their holder without cost to the holder. You may retender properly withdrawn old notes by following one of the procedures described under the caption "--Procedures for Tendering" above at any time on or before expiration of the exchange offer. Exchange Agent The Bank of New York has been appointed as exchange agent for the exchange offer. All executed letters of transmittal should be delivered to our exchange agent at the address set forth below. You should direct questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal to the exchange agent addressed as follows: By Registered Mail, Hand Delivery or Overnight Courier: The Bank of New York Lower Ground Floor 30 Cannon Street London EC4M 6XH Attn: Julie McCarthy For Information, Call: 011 44 (207) 964-6513 or 011 44 (207) 964-7235 By Facsimile Transmission: (for Eligible Institutions Only) 011 44 (207) 964-6369 or 011 44 (207) 964-7294 Confirm by Telephone: 011 44 (207) 964-7235 Delivery of the letter of transmittal to an address other than as shown above or transmission of the letter of transmittal via facsimile other than as set forth above does not constitute a valid delivery of the letter of transmittal. Fees and Expenses We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to broker-dealers or others soliciting acceptances of the exchange offer. We will, however, pay the 27 exchange agent reasonable and customary fees for its services and reimburse it for its related reasonable out-of-pocket expenses. We will pay the cash expenses to be incurred in connection with the exchange offer, including the following: . SEC registration fees; . fees and expenses of the exchange agent and trustee; . our accounting and legal fees; and . our printing and mailing costs. Transfer Taxes We will pay all transfer taxes, if any, applicable to the exchange of old notes under the exchange offer. A tendering holder of old notes, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if: . certificates representing old notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of old notes tendered; . new notes are to be delivered to, or issued in the name of, any person other than the registered holder of the old notes; . tendered old notes are registered in the name of any person other than the person signing the letter of transmittal; or . a transfer tax is imposed for any reason other than the exchange of old notes under the exchange offer. If satisfactory evidence of payment of transfer taxes is not submitted with the letter of transmittal, then the amount of any transfer taxes will be billed to the tendering holder. Accounting Treatment We will record the new notes in our accounting records at the same carrying value as the old notes, which is the aggregate principal amount, as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offer. We will record the expenses of the exchange offer as incurred. Resale of New Notes Based on interpretations of the staff of the SEC, as set forth in no-action letters to third parties, we believe that new notes issued under the exchange offer in exchange for old notes may be offered for resale, resold and otherwise transferred by any old note holder without further registration under the Securities Act and without delivery of a prospectus that satisfies the requirements of Section 10 of the Securities Act if: . the holder is not our "affiliate" within the meaning of Rule 405 under the Securities Act; . the new notes are acquired in the ordinary course of the holder's business; and . the holder does not intend to participate in a distribution of the new notes. Any holder who exchanges old notes in the exchange offer with the intention of participating in any manner in a distribution of the new notes must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction. 28 This prospectus may be used for an offer to resell, resale or other retransfer of new notes. With regard to broker-dealers, only broker-dealers that acquired the old notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives new notes for its own account in exchange for old notes, where the old notes were acquired by the broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. Please read the caption "Plan of Distribution" for more details regarding the transfer of new notes. Consequences of Failing to Exchange Old Notes Holders who desire to tender their old notes in exchange for new notes registered under the Securities Act should allow sufficient time to ensure timely delivery. Neither we nor the exchange agent is under any duty to give notification of defects or irregularities with respect to the tenders of old notes for exchange. Old notes that are not tendered or are tendered but not accepted will, following the consummation of the exchange offer, continue to be subject to the provisions in the indenture regarding the transfer and exchange of the old notes and the existing restrictions on transfer set forth in the legend on the old notes and in the offering memorandum dated May 4, 2001, relating to the old notes. Except in limited circumstances with respect to the specific types of holders of old notes, we will have no further obligation to provide for the registration under the Securities Act of such old notes. In general, old notes, unless registered under the Securities Act, may not be offered or sold except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not anticipate that we will take any action to register the untendered old notes under the Securities Act or under any state securities laws. Upon completion of the exchange offer, holders of the old notes will not be entitled to any further registration rights under the registration rights agreement, except under limited circumstances. Old notes that are not exchanged in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits their holders have under the indenture relating to the old notes and the new notes. Holders of the new notes and any old notes that remain outstanding after consummation of the exchange offer will vote together as a single class for purposes of determining whether holders of the requisite percentage of the class have taken certain actions or exercised certain rights under the indenture. 29 THE TRANSACTIONS The Acquisition On March 4, 2001, we submitted a binding offer to acquire from Legris Industries SA all of the outstanding capital stock of Potain for aggregate cash consideration of approximately FRF 2.3 billion (approximately U.S. $307.1 million), subject to a post-closing adjustment to reflect Potain's net income for the period from January 1, 2001 through the closing of the acquisition. On May 9, 2001, we and Legris entered into a share purchase agreement and simultaneously closed the acquisition. Concurrently with the closing of the acquisition, we issued the old notes, established a new senior credit facility and applied the net proceeds from the issuance of the old notes and the new senior credit facility to consummate the Potain acquisition, refinance our existing indebtedness and pay fees and expenses arising out of the acquisition and related financing transactions. The share purchase agreement contains what we believe to be customary representations and warranties from Legris Industries with respect to Potain and the stock of Potain. Legris has agreed to indemnify Potain and us for any loss resulting from: . any breach of any representation and warranty made by Legris in the share purchase agreement; and . the failure of Legris to comply with its covenants set forth in the share purchase agreement. Legris' obligation to provide indemnification for a breaches of representations and warranties as described above is generally limited to only losses in excess of FRF 30.0 million (approximately U.S. $4.0 million) in the aggregate and less than FRF 430.0 million (approximately U.S. $58.0 million) in the aggregate. The indemnification obligations of Legris generally expire sixteen months after the closing, subject to a longer period for tax matters, issues relating to Legris' ownership of the stock of Potain and selected other matters. Legris has also agreed to indemnify Potain and us for the remediation of environmental matters relating to Potain. We have agreed to share in the costs of any necessary environmental remediation up to an aggregate limit of FRF 10 million (approximately U.S. $1.4 million). Legris' obligation to provide indemnity for environmental matters extends for a three-year period after closing and is limited to a cap of FRF 100.0 million (approximately U.S. $13.5 million). This cap, which is part of the overall FRF 430.0 million (approximately U.S. $58.0 million), may be increased depending on the results of an environmental investigation that we will have completed prior to closing of the acquisition. On April 27, 2001, a former stockholder of Potain, who sold her shares in 1988 and 1989, commenced a summary proceeding against Legris in French court potentially seeking rescission of the sales of the former stockholder's stock of Potain. The former stockholder also previously asserted a damages claim against Legris in connection with her sales of shares. On May 4, 2001, the French court dismissed the summary proceeding pursuant to which the former stockholder had sought to have the shares in question placed in judicial escrow. The stockholder retains the right, however, to appeal this decision. If the former stockholder were to be successful in obtaining rescission, then it is possible that the prior sales could be nullified and we would be required to transfer approximately 6.4% of the outstanding stock of Potain to the former stockholder. We have reviewed the merits of the rescission claim and we believe that the former stockholder's claim is without merit. Under the share purchase agreement, Legris is obligated to indemnify us with respect to any loss relating to title to these shares. The Senior Credit Facility Our new senior credit facility consists of a two-tranche term loan facility aggregating $350.0 million and a $125.0 million revolving credit facility entered into with Bankers Trust Company, as agent and lender, and other financial institutions. The senior credit facility is guaranteed by all of our domestic subsidiaries. See "Description of Indebtedness." 30 USE OF PROCEEDS We will not receive any cash proceeds from the issuance of the new notes under the exchange offer. In consideration for issuing the new notes as contemplated by this prospectus, we will receive the old notes in like principal amount, the terms of the which are identical in all material respects to the new notes. The old notes surrendered in exchange for the new notes will be retired and canceled and cannot be reissued. Accordingly, the issuance of the new notes will not result in any increase or decrease in our indebtedness. We used the net proceeds from the sale of the old notes, together with borrowings under our new senior credit facility to consummate the Potain acquisition, refinance our existing indebtedness and pay fees and expenses arising out of the acquisition and related financing transactions. 31 CAPITALIZATION The following table sets forth our unaudited historical consolidated cash and cash equivalents and capitalization as of March 31, 2001 and our pro forma capitalization at such date after giving effect to the acquisition of Potain and related financing transactions, including the issuance of the old notes, and the application of the proceeds from these financing transactions, in each case as if the acquisition and financing transactions occurred on March 31, 2001. This table should be read in conjunction with "The Transactions," "Use of Proceeds," "Management's Discussion and Analysis of Financial Condition and Results of Operations," our unaudited historical consolidated and unaudited pro forma condensed consolidated financial statements and the audited consolidated historical financial statements of Potain.
As of March 31, 2001(4) ------------------------- Actual Pro Forma ----------- ------------- (Thousands of Dollars) Cash and cash equivalents........................... $ 8,186 $ 47,608 =========== =========== Debt: Existing credit facility.......................... $ 105,900 $ -- New senior credit facility: Revolving credit facility(1).................... -- 43,600 Term loan A..................................... -- 175,000 Term loan B..................................... -- 175,000 Senior notes due 2010(2).......................... 75,000 -- Commercial paper.................................. 24,771 -- Industrial revenue bonds.......................... 3,607 3,607 Potain debt(3).................................... -- 14,235 Senior subordinated notes due 2011 ............... -- 154,700 ----------- ----------- Total debt...................................... 209,278 566,142 Stockholders' equity................................ 241,966 238,548 ----------- ----------- Total capitalization.......................... $451,244 $ 804,690 =========== ===========
- -------- (1) After giving effect to the acquisition of Potain and related financing transactions, we would have $80.6 million of undrawn availability under our new $125.0 million revolving credit facility, which is net of estimated outstanding letters of credit of $0.8 million. (2) Consists of $50.0 million aggregate principal amount of our series A senior notes due 2010 and $25.0 million aggregate principal amount of senior shelf notes due 2010. (3) See "Description of Indebtedness--Potain Debt". (4) There has been no material change in our capitalization since March 31, 2001, except as set forth in this prospectus. 32 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS The following unaudited pro forma condensed financial statements are based on our historical financial statements and the historical financial statements of Potain and should be read in conjunction with the historical financial statements included in this prospectus. The pro forma financial statements reflect the following: . the acquisition of Potain; . the issuance of (Euro)175.0 million (approximately U.S. $154.7 million computed at the noon buying rate on March 30, 2001) of senior subordinated notes in this offering; . borrowings of $393.6 million under our new senior credit facility; and . the prepayment of outstanding borrowings under our existing revolving credit facility and our existing senior notes due 2010. Pro forma adjustments to historical financial statements include adjustments that we deem appropriate, reflecting items of recurring significance and which are factually supported based on currently available information. We assumed that the acquisition of Potain and related financing transactions, including the issuance of the notes, occurred on January 1, 2000 for purposes of preparing the unaudited pro forma condensed consolidated statements of earnings for the year ended December 31, 2000 and January 1, 2001 for the three months ended March 31, 2001, respectively, and on March 31, 2001 for purposes of preparing the unaudited condensed consolidated balance sheet. The pro forma financial statements may not be indicative of what actual results would have been, nor do the pro forma financial statements purport to present our condensed consolidated financial results for future periods. The unaudited pro forma condensed consolidated financial data has been derived from the historical consolidated financial statements of Manitowoc and Potain. The pro forma adjustments, as described in the notes that follow, are based upon available information and upon certain assumptions that management believes are reasonable. You should read this information in conjunction with the financial statements of Manitowoc and Potain included elsewhere in this prospectus. The unaudited pro forma condensed consolidated financial statements are included for comparative purposes only and do not purport to be indicative of the results of Manitowoc in the future or what the financial position and results of operations would have been had Manitowoc acquired Potain on the dates described above. Amounts in U.S. dollars have been translated from euro at the rate of (Euro)1.00 to $0.88, the noon buying rate on March 30, 2001, in the unaudited pro forma condensed consolidated balance sheet and at the rate of (Euro)1.00 to $0.92, the average rate on the last business day of each month during the applicable periods, in the unaudited pro forma condensed consolidated statements of earnings for the year ended December 31, 2000 and the three months ended March 31, 2001, respectively. 33 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS (In thousands, except per share data and ratios)
Year Ended December 31, 2000 ----------------------------------------------- Manitowoc Potain(1) Pro Forma Pro Historical Historical Adjustments Forma ---------- ---------- ----------- ---------- Net sales...................... $873,272 $259,962 $ -- $1,133,234 Costs and expenses: Cost of sales................ 637,538 184,697 -- 822,235 Engineering, selling and administrative expenses..... 114,901 47,612 -- 162,513 Amortization................. 8,181 395 4,351 (2) 12,927 -------- -------- -------- ---------- Total costs and expenses... 760,620 232,704 4,351 997,675 Earnings from operations....... 112,652 27,258 (4,351) 135,559 Interest expense............... (14,508) (192) (32,699)(3) (47,399) Other (expense) income, net.... (2,024) (472) (403)(4) (2,899) -------- -------- -------- ---------- Earnings before income taxes... 96,120 26,594 (37,453) 85,261 Provision for taxes on income.. 35,852 10,750 (11,645)(5) 34,957 -------- -------- -------- ---------- Net earnings(6)................ $ 60,268 $ 15,844 $(25,808) $ 50,304 ======== ======== ======== ========== Per Share Data: Earnings per share--basic...... $ 2.42 $ 2.02 ======== ========== Weighted average shares outstanding--basic............ 24,891 24,891 ======== ========== Earnings per share--diluted.... $ 2.40 $ 2.00 ======== ========== Weighted average shares outstanding--diluted.......... 25,123 25,123 ======== ========== Other financial data: Depreciation................... $ 9,872 $ 11,940 $ 21,812 Amortization................... 8,181 395 12,927 EBITDA(7)...................... 130,705 39,593 170,298 Capital expenditures........... 13,415 30,309 43,724 Ratio of EBITDA to interest expense....................... 9.0x 206.2x 3.6x Ratio of earnings to fixed charges(8).................... 6.5x 37.7x 2.7x
The accompanying notes are an integral part of these pro forma consolidated financial statements. 34 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS (In thousands, except per share data and ratios)
For the Three Months Ended March 31, 2001 -------------------------------------------- Manitowoc Potain(1) Pro Forma Pro Historical Historical Adjustments Forma ---------- ---------- ----------- -------- Net sales........................ $229,351 $74,587 $ -- $303,938 Costs and expenses: Cost of sales.................. 173,321 57,909 -- 231,230 Engineering, selling and administrative expenses....... 33,686 12,377 -- 46,063 Amortization................... 2,315 109 1,077 (2) 3,501 -------- ------- ------- -------- Total costs and expenses..... 209,322 70,395 1,077 280,794 Earnings from operations......... 20,029 4,192 (1,077) 23,144 Interest expense................. (4,096) (39) (7,715)(3) (11,850) Other (expense) income, net...... (115) -- (101)(4) (216) -------- ------- ------- -------- Earnings before income taxes..... 15,818 4,153 (8,893) 11,078 Provision for taxes on income.... 5,948 1,630 (3,036)(5) 4,542 -------- ------- ------- -------- Net earnings(6).................. $ 9,870 $ 2,523 $(5,857) $ 6,536 ======== ======= ======= ======== Per Share Data: Earnings per share--basic........ $ 0.41 $ 0.27 ======== ======== Weighted average shares outstanding--basic.............. 24,262 24,262 ======== ======== Earnings per share--diluted...... $ 0.40 $ 0.27 ======== ======== Weighted average shares outstanding--diluted............ 24,543 24,543 ======== ======== Other financial data: Depreciation..................... $ 2,893 $ 3,928 $ 6,821 Amortization..................... 2,315 109 3,501 EBITDA(7)........................ 25,237 8,229 33,466 Capital expenditures............. 5,336 3,196 8,532 Ratio of EBITDA to interest expense......................... 6.2x 211.0x 2.8x Ratio of earnings to fixed charges(8)...................... 4.2x 25.1x 1.9x
The accompanying notes are an integral part of these pro forma consolidated financial statements. 35 NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS The following adjustments have been made to the historical condensed consolidated historical statements of earnings of Manitowoc and Potain to compute the unaudited pro forma amounts. (1) The table below sets out the adjustments necessary to convert the Potain historical statement of earnings from French GAAP to U.S. GAAP. The Potain historical financial information and U.S. GAAP adjustments have been derived from the Potain consolidated financial statements included elsewhere in this prospectus.
For the Year ended December 31, 2000 For the Three Months Ended March 31, 2001 --------------------------------- ------------------------------------------------ Potain U.S. GAAP Potain Potain U.S. GAAP Potain French GAAP Adjustments U.S. GAAP French GAAP Adjustments U.S. GAAP ----------- ----------- --------- -------------- -------------- -------------- Net sales............... $264,016 $(4,054) $259,962 $74,046 $ 541 $74,587 Costs and expenses: Cost of sales......... 188,210 (3,513) 184,697 57,433 476 57,909 Engineering, selling and administrative... 46,787 825 47,612 12,360 17 12,377 Amortization.......... 228 167 395 109 -- 109 -------- ------- -------- -------------- ------------ -------------- Total costs and expenses........... 235,225 (2,521) 232,704 69,902 493 70,395 Earnings from operations............. 28,791 (1,533) 27,258 4,144 48 4,192 Interest (expense) income--net............ 799 (991) (192) 201 (240) (39) Other (expense) income-- net.................... (541) 69 (472) -- -- -- -------- ------- -------- -------------- ------------ -------------- Earnings before income taxes.................. 29,049 (2,455) 26,594 4,345 (192) 4,153 Provision for taxes on income................. 10,634 116 10,750 1,663 (33) 1,630 -------- ------- -------- -------------- ------------ -------------- Net income.............. $ 18,415 $(2,571) $ 15,844 $ 2,682 $(159) $ 2,523 ======== ======= ======== ============== ============ ==============
(2) To adjust amortization based on the increase in goodwill in connection with the Potain acquisition. Goodwill is being amortized over forty years. (3) To adjust interest expense to reflect the issuance of debt in connection with the acquisition of Potain and the repayment of existing debt:
For the Year For the Three Interest Ended December Months ended Instrument Amount Rate 31, 2000 March 31, 2001 - ---------- -------- -------- -------------- -------------- Senior credit facility: Revolving credit facility.. $ 43,600 6.825% $ 2,976 $ 744 Term loan A................ 175,000 6.825 11,944 2,986 Term loan B................ 175,000 7.075 12,381 3,095 -------- Total.................... 393,600 Senior subordinated notes.... 154,700 10.375 16,050 4,013 Miscellaneous................ 17,842 Various 1,023 256 Amortization of financing costs....................... -- -- 3,025 756 -------- ------- ------- $566,142 $47,399 $11,850 ======== ======= =======
The revolving credit facility, which provides for maximum borrowings of $125.0 million, has a 0.500% commitment fee on the unused balance (see Note (4) below). 36 The above interest amounts related to the revolving credit facility and term loans assume a LIBOR rate of 4.2%. A 0.125% increase or decrease in the assumed average interest rate would change the pro forma interest expense by approximately $493,000 for the year ended December 31, 2000 and by approximately $123,000 for three months ended March 31, 2001. (4) To record the commitment fee related to the assumed unused balance of the new revolving credit facility which provides for maximum borrowings of $125.0 million. (5) To adjust the provision for taxes on income to an effective income tax rate of 41%. (6) Pro forma net earnings excludes an extraordinary loss (approximately $3.4 million, net of income tax effects) related to the early extinguishment of our existing debt which will be paid from the proceeds of the financing upon consummation of this offering. (7) EBITDA consists of earnings from operations plus depreciation and amortization. We have presented EBITDA information solely as a supplemental disclosure because management believes that it is generally accepted as providing useful information regarding a company's ability to service and/or incur debt. EBITDA should not be construed as an alternative to earnings from operations as determined in accordance with generally accepted accounting principles as an indicator of our operating performance, or as an alternative to cash flows from operating activities as determined in accordance with generally accepted accounting principles as a measure of liquidity. We have significant uses of cash flows, including capital expenditures and debt principal repayments that are not reflected in EBITDA. It should also be noted that not all companies that report EBITDA information calculate EBITDA in the same manner as we do. (8) For purposes of computing the ratio of earnings to fixed charges, earnings consist of earnings from operations before income taxes and fixed charges, excluding capitalized interest. Fixed charges consist of interest expensed and capitalized, amortization of debt issuance costs and the interest component of rent expense. 37 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET (In thousands)
March 31, 2001 ------------------------------------------------ Manitowoc Potain(1) Pro Forma Historical Historical Adjustments Pro Forma ---------- ---------- ----------- ---------- ASSETS Current Assets: Cash and cash equivalents.... $ 8,186 $ 39,422 $ -- $ 47,608 Accounts receivable--net..... 71,730 72,193 -- 143,923 Inventories.................. 101,818 60,719 -- 162,537 Other current assets......... 12,898 9,543 -- 22,441 Future income tax benefits... 22,756 -- -- 22,756 --------- -------- -------- ---------- Total current assets....... 217,388 181,877 -- 399,265 --------- -------- -------- ---------- Intangible assets--net......... 306,845 8,450 189,836 (3) 505,131 Property, plant and equipment-- net........................... 102,297 69,449 -- 171,746 Deferred income taxes.......... -- 4,409 (4,409)(2) -- Deferred financing costs....... 671 -- 19,354 (4) 20,025 Other non-current assets....... 14,581 1,957 -- 16,538 --------- -------- -------- ---------- Total assets............... $ 641,782 $266,142 $204,781 $1,112,705 ========= ======== ======== ========== LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Accounts payable and accrued expenses.................... $ 145,996 $ 55,753 $ (2,059)(5) $ 199,690 Short-term borrowings........ 68,671 7,863 (69,705)(6) 6,829 Current portion of long-term debt........................ 270 -- 27,563 (6) 27,833 Product warranties........... 12,537 3,391 -- 15,928 Other current liabilities.... -- 45,569 -- 45,569 --------- -------- -------- ---------- Total current liabilities.. 227,474 112,576 (44,201) 295,849 --------- -------- -------- ---------- Non-Current Liabilities: Long-term debt, less current portion..................... 140,337 12,070 (141,664)(6) 10,743 Senior subordinated notes.... -- -- 154,700 (6) 154,700 Senior credit facility....... -- -- 366,037 (6) 366,037 Postretirement benefit obligation.................. 20,481 2,652 -- 23,133 Deferred income taxes........ -- 6,124 (6,124)(2) -- Other non-current liabilities................. 11,524 12,171 -- 23,695 --------- -------- -------- ---------- Total non-current liabilities............... 172,342 33,017 372,949 578,308 --------- -------- -------- ---------- Minority interest.............. -- 177 (177)(2) -- Stockholders' Equity: Common stock................. 367 12,055 (12,055)(2) 367 Additional paid-in capital... 31,586 11,035 (11,035)(2) 31,586 Accumulated other comprehensive loss.......... (2,451) (102) 102 (2) (2,451) Retained earnings............ 342,513 97,384 (97,384)(2) 339,095 (3,418)(5) Treasury stock............... (130,049) -- -- (130,049) --------- -------- -------- ---------- Total stockholders' equity.................... 241,966 120,372 (123,790) 238,548 --------- -------- -------- ---------- Total liabilities and stockholders' equity...... $ 641,782 $266,142 $204,781 $1,112,705 ========= ======== ======== ==========
The accompanying notes are an integral part of these pro forma consolidated financial statements. 38 NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET The following adjustments have been made to the condensed consolidated historical balance sheets of Manitowoc and Potain to compute the unaudited pro forma condensed consolidated balance sheet. (1) The table below sets out the adjustments necessary to convert the Potain historical balance sheet from French GAAP to U.S. GAAP. The Potain historical financial information and U.S. GAAP adjustments have been derived from the Potain consolidated financial statements included elsewhere in this prospectus.
Potain Potain French U.S. GAAP U.S. GAAP Adjustments GAAP -------- ----------- -------- Assets Current Assets: Cash and cash equivalents.............. $ 43,772 $(4,350) $ 39,422 Accounts receivable--net.. 72,193 -- 72,193 Inventories............... 60,719 -- 60,719 Other current assets...... 9,543 -- 9,543 Future income tax benefits................. -- -- -- -------- ------- -------- Total current assets.... 186,227 (4,350) 181,877 Intangible assets--net...... 8,601 (151) 8,450 Property, plant and equipment--net............. 55,227 14,222 69,449 Deferred income taxes....... 1,896 2,513 4,409 Deferred financing costs.... -- -- -- Other non-current assets.... 2,323 (366) 1,957 -------- ------- -------- Total assets............ $254,274 $11,868 $266,142 ======== ======= ======== Liabilities and Stockholders' Equity Current Liabilities: Accounts payable and accrued expenses......... $ 55,694 $ 59 $ 55,753 Short-term borrowings..... 7,863 -- 7,863 Current portion of long- term debt................ -- -- -- Product warranties........ 3,391 -- 3,391 Other current liabilities.............. 39,357 6,212 45,569 -------- ------- -------- Total current liabilities............ 106,305 6,271 112,576 Non-current Liabilities: Long-term debt, less current portion.......... 12,070 -- 12,070 Senior subordinated notes.................... -- -- -- Senior credit facility.... -- -- -- Post retirement benefit obligation............... 4,406 (1,754) 2,652 Deferred income taxes..... 5,892 232 6,124 Other non-current liabilities.............. -- 12,171 12,171 -------- ------- -------- Total non-current liabilities............ 22,368 10,649 33,017 Minority interest........... 177 -- 177 Stockholders' Equity: Common stock.............. 12,055 -- 12,055 Additional paid-in capital.................. 11,035 -- 11,035 Accumulated other comprehensive loss....... (108) 6 (102) Retained earnings......... 102,442 (5,058) 97,384 Treasury stock............ -- -- -- -------- ------- -------- Total stockholders' equity................. 125,424 (5,052) 120,372 -------- ------- -------- Total liabilities and stockholders' equity... $254,274 $11,868 $266,142 ======== ======= ========
39 (2) Represents the elimination of Potain historical amounts related to deferred income taxes, minority interest, and stockholders' equity. (3) To record goodwill of $189.8 million in connection with the Potain acquisition. The purchase price of $312.1 million includes the amount to be paid to Group Legris Industries SA (seller) of $307.1 million plus estimated direct acquisition costs of $5.0 million.The purchase price is subject to an adjustment for the net earnings of Potain from January 1, 2001, to the closing date. The excess of the purchase consideration over the net assets acquired (goodwill) is required to be applied to write-up assets to their fair market value. No appraisals of assets have yet to be performed and all of the excess of purchase consideration over the net assets to be acquired is being recorded as goodwill. Subsequent valuation analyses could potentially change the purchase price allocation. Goodwill is being amortized over forty years for purposes of the unaudited pro forma condensed consolidated statement of earnings. (4) Reflects estimated new debt issuance costs of approximately $20,025 that will be incurred as a result of the acquisition of Potain and related debt financing, net of a write-off of $671 of unamortized debt issuance costs related to existing debt which is paid with the proceeds of the financing. The deferred financing fees are being amortized over the term of the related debt, which ranges from 6 to 10 years. (5) To record the effects of the extraordinary loss related to the early extinguishment of the existing Manitowoc debt as follows: Prepayment penalty............................................... $ 4,806 Write-off of deferred financing costs............................ 671 ------- 5,477 Less-income tax benefit.......................................... (2,059) ------- Retained earnings adjustment..................................... $ 3,418 =======
(6) The pro forma adjustments required to record the financing portion of the transactions are as follows: Payment of short-term borrowings: Manitowoc................................................... $ (68,671) Potain...................................................... (1,034) --------- $ (69,705) ========= Payment of long-term borrowings: Manitowoc revolving credit facility......................... $ (62,000) Manitowoc senior notes due 2010............................. (75,000) Potain debt................................................. (4,664) --------- Total..................................................... $(141,664) ========= Proceeds from senior subordinated notes....................... $ 154,700 ========= Proceeds from senior credit facility: Revolving credit facility................................... $ 43,600 Term loan A................................................. 175,000 Term loan B................................................. 175,000 --------- 393,600 Current portion............................................. (27,563) --------- Total..................................................... $ 366,037 =========
40 SELECTED HISTORICAL FINANCIAL AND OTHER DATA The selected historical consolidated financial and other data presented below as of and for each of the five years ended December 31, 2000 have been derived from our audited consolidated financial statements. The summary historical financial data as of and for the three months ended March 31, 2000 and 2001 have been derived from our unaudited consolidated financial statements. The selected consolidated financial and other data set forth below should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus (except for the consolidated financial statements as of and for the years ended December 31, 1996 and 1997, which are not included in this prospectus).
For the Three Months For the Years Ended December 31, Ended March 31, ------------------------------------------------- ------------------ 1996 1997 1998 1999 2000(1) 2000 2001(1) -------- -------- -------- -------- --------- -------- -------- (Thousands of dollars, except per share data and ratios) Statement of Earnings Data: Net sales: Food service equipment............ $242,317 $247,057 $319,457 $379,625 $ 425,080 $ 92,929 $101,245 Cranes and related products............. 220,821 268,416 339,051 389,510 376,250 100,770 84,258 Marine................ 47,584 39,162 45,412 55,204 71,942 12,154 43,848 -------- -------- -------- -------- --------- -------- -------- Total net sales...... 510,722 554,635 703,920 824,339 873,272 205,853 229,351 -------- -------- -------- -------- --------- -------- -------- Costs and expenses: Cost of sales......... 376,081 402,035 508,299 590,627 637,538 150,136 173,321 Engineering, selling and administrative expenses............. 79,551 84,231 98,120 107,369 114,901 27,072 33,686 Plant relocation costs................ 1,200 -- -- -- -- -- -- Amortization.......... 3,000 3,394 4,881 7,392 8,181 1,902 2,315 -------- -------- -------- -------- --------- -------- -------- Total cost and expenses............ 459,832 489,660 611,300 705,388 760,620 179,110 209,322 -------- -------- -------- -------- --------- -------- -------- Earnings from operations............. 50,890 64,975 92,620 118,951 112,652 26,743 20,029 Interest expense........ (9,097) (6,230) (9,741) (10,790) (14,508) (2,511) (4,096) Other (expense) income-- net.................... 713 (928) (1,467) (2,155) (2,024) (371) (115) -------- -------- -------- -------- --------- -------- -------- Earnings before taxes on income................. 42,506 57,817 81,412 106,006 96,120 23,861 15,818 Provision for taxes on income................. 16,863 21,394 30,032 39,222 35,852 8,948 5,948 -------- -------- -------- -------- --------- -------- -------- Net earnings............ $ 25,643 $ 36,423 $ 51,380 $ 66,784 $ 60,268 $ 14,913 $ 9,870 ======== ======== ======== ======== ========= ======== ======== Per share data(2): Basic................. $ .99 $ 1.41 $ 1.98 $ 2.57 $ 2.42 $ 0.58 $ 0.41 Diluted............... .99 1.40 1.97 2.55 2.40 0.57 0.40 Other Financial Data: EBITDA(3)............... $ 62,208 $ 76,687 $107,230 $135,664 $ 130,705 $ 31,168 $ 25,237 Cash flows from operations............. 64,514 43,587 56,814 103,371 63,047 1,112 11,077 Cash flows from investing.............. (7,352) (75,570) (58,618) (69,416) (109,037) (35,555) (5,341) Cash flows from financing.............. (58,185) 29,520 496 (34,422) 50,006 42,595 (11,451) Capital expenditures.... 8,396 12,040 11,678 13,714 13,415 4,853 5,336 Ratio of total debt to EBITDA................. 1.4x 1.7x 1.3x 0.8x 1.7x 5.7x 8.3x Ratio of EBITDA to interest expense....... 6.8x 12.3x 11.0x 12.6x 9.0x 12.4x 6.2x Ratio of earnings to fixed charges(4)....... 5.0x 8.9x 8.6x 9.5x 6.5x 8.4x 4.2x Balance Sheet Data (at end of period): Cash and cash equivalents............ $ 14,364 $ 11,888 $ 10,582 $ 10,097 $ 13,983 $ 18,239 $ 8,186 Total assets............ 317,710 396,368 481,014 530,240 642,530 595,612 641,782 Total debt.............. 87,565 130,859 139,302 112,012 218,938 179,202 209,278 Stockholders' equity.... 100,329 128,618 172,552 232,176 233,769 222,310 241,966
41 - -------- (1) Includes the results of Marinette Marine Corporation from November 20, 2000, the date of its acquisition. (2) Per share data has been adjusted to reflect the three-for-two stock splits that occurred in 1996, 1997 and 1999. (3) EBITDA consists of earnings from operations plus depreciation and amortization. We have presented EBITDA information solely as a supplemental disclosure because management believes that it is generally accepted as providing useful information regarding a company's ability to service and/or incur debt. EBITDA should not be construed as an alternative to earnings from operations as determined in accordance with generally accepted accounting principles as an indicator of our operating performance, or as an alternative to cash flows from operating activities as determined in accordance with generally accepted accounting principles as a measure of liquidity. We have significant uses of cash flows, including capital expenditures and debt principal repayments that are not reflected in EBITDA. It should also be noted that not all companies that report EBITDA information calculate EBITDA in the same manner as we do. (4) For purposes of computing the ratio of earnings to fixed charges, earnings consists of earnings from operations before income taxes and fixed charges, excluding capitalized interest. Fixed charges consist of interest expensed and capitalized, amortization of debt issuance costs and the interest component of rent expense. 42 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion and analysis should be read in conjunction with the section "Selected Historical Financial and Other Data" and the consolidated financial statements and related notes appearing in this prospectus. Unless otherwise indicated, all references in this "Management's Discussion and Analysis of Financial Condition and Results of Operations" to our business are not pro forma for the acquisition of Potain and related financing transactions. Overview We are a diversified industrial manufacturer with leading positions in our three principal markets: cranes, foodservice equipment and marine services. In our crane segment, we design, manufacture and market a comprehensive line of crawler cranes, tower cranes and boom trucks with capacities ranging between 10 and 1,433 tons. In our foodservice segment, we design, manufacture and market full product lines of ice making machines, walk-in and reach-in refrigerators, fountain beverage dispenser systems and other foodservice refrigeration products for the restaurant, lodging, convenience store and institutional foodservice markets. Our marine segment provides shipbuilding, repair and maintenance services in the Great Lakes region. In 2000, we invested $2.6 million in manufacturing process improvements and growth initiatives as well as $6.7 million in research and development that led to the introduction of 46 new or improved products among all of our segments. Nearly 60% of the products we now sell have been acquired or introduced within the last three years. In 2000, SerVend, our largest beverage-equipment company, broadened its market reach by introducing a line of counter-electric beverage dispensers. Manitowoc Ice launched a number of new ice machines, including a series of ice flakers and the Series 800 IB ice/beverage dispenser, which leverages our patented CVD technology introduced in 1999. With orders received for 80 units in the first seven months on the market, our Model 999 lattice- boom crane became the most successful new-product launch in the 75-year history of our large-crane subsidiary. Our 2000 worldwide sales in our cranes and related products segment were $376.2 million. A number of process improvements in our crane operations, along with new robotic welding equipment and a new paint system, are driving down the time it takes us to manufacture a crane. Reduced lead times for our cranes allow us to receive an order, assemble and deliver a crane in less than 90 days. We believe that lattice-boom crane fleet utilization remains high and contractors continue to report increased quotation activity. We expect to benefit from the U.S. Transportation Equity Act for the 21st Century, which authorizes up to $217.0 billion in funding for highway and infrastructure through 2003. We believe rising energy prices and electrical power shortages are increasing the demand for cranes as nearly every segment of the energy industry strives to increase supply. Our foodservice equipment segment sales were $425.1 million for 2000. In 2000, we made more than $8.9 million in capital investments within our foodservice segment to improve our ability to serve our customers, reduce costs and cycle times and boost productivity. The conversion of our main ice-machine production facility to Demand Flow Technology(R) allows us to "build-to-order" and to substantially eliminate excess inventory. We expect to introduce demand flow manufacturing across the majority of our foodservice operations in the near future. The foodservice equipment industry is one of the most vibrant industries as food and drink sales are forecast to reach $399.0 billion in 2001 according to the National Restaurant Association. As disposable income continues to grow, combined with higher numbers of dual family incomes, we believe more of today's food dollar is spent away from home. We also see opportunities with existing locations as chain accounts and quick service restaurants focus their growth from increasing new store sales to increasing same store sales. 43 Our 2000 sales for our marine segment were $71.9 million. Our acquisition of Marinette Marine Corporation in November 2000, combined with our existing Marine Group, creates the largest and most comprehensive shipbuilding and ship- repair organization on the Great Lakes. While we have concentrated on the repair, maintenance and construction of commercial vessels, Marinette is best known for its construction of military and research vessels. We now expect to combine our steel fabrication and repair capabilities with Marinette's skill and expertise in outfitting. We also expect to gain new economies and efficiencies of scale in purchasing, marketing, and support services. In addition, we anticipate that we will benefit from the proven skills and experience of Marinette's engineering staff, while we will provide the financial resources required to pursue larger contracts and fund new growth. With a current combined backlog of over $200.0 million at December 31, 2000, we are positioned to become one of the leading builders of mid-sized ships in the country. In 2000, we focused on acquisitions as we invested nearly $100 million to acquire five companies: three foodservice businesses, a boom truck manufacturer and one of the largest shipyards on the Great Lakes. Since 1995, we have more than doubled the size of each of our three businesses through acquisitions. With the completion of the acquisition of Potain, we have completed ten acquisitions since January 1, 1998, which we believe has given us a broad base of experience in identifying the right companies to acquire and integrating them into our operations. We look for companies that complement our current operations, fill voids in our product lines and geographic areas and are market leaders. We require acquisitions to contribute to earnings within two years and to be EVA positive within three years. Many of our acquisitions, and our purchase of the remaining percentage of our Chinese joint venture, have helped build our presence in international markets. Results of Operations for the Quarters Ended March 31, 2000 and 2001 Net sales increased 11.4% to $229.4 million in the first quarter of 2001, from $205.9 million for the same period in 2000. Net earnings for the quarter were $9.9 million, or $.40 per diluted share, compared with $14.9 million, or $.57 per diluted share, in the first quarter of 2000. Weighted-average shares outstanding used to calculate diluted earnings per share were 24.5 million for the first quarter of 2001 and 26.0 million for the first quarter of 2000. Foodservice equipment segment sales were $101.2 million for the first quarter of 2001, up 9% from the first quarter of 2000. Operating earnings from foodservice equipment were $9.5 million for the quarter, a 22% drop from the $12.2 million earned during the same period last year. The increase in sales was the result of acquisitions made during 2000. Without the acquisitions, sales would have declined by 22% and operating earnings would have declined by 24% compared to the same period last year. Capital spending constraints in the beverage equipment industry continue to lower volumes in this business. These volume decreases, along with product mix issues and slower ice-machine sales, contributed to the decline in foodservice equipment margins. First quarter sales for the crane segment were $84.3 million, compared to $100.8 million for 2000, a decline of 16%. Crane segment operating earnings dropped 34% to $11.4 million from $17.3 million in the first quarter of 2000. Sales of our boom trucks continued to be weak due to greater economic pressures on smaller contractors, reflecting the reduced order patterns for light-duty construction equipment that we have seen in the past two quarters. In addition, pricing pressures due to the strong U.S. dollar and greater competitiveness in the global market impacted our crane segment. These factors negatively impacted our crane margins. We believe prospects for our crane segment remain solid. Quoting activity for our higher-capacity lift cranes continued to climb, driven by demand in the energy-related markets. We believe this is evidenced by the positive response we received at BAUMA 2001, the international construction equipment trade fair in Germany. We introduced five major new crane products--a number unprecedented in the lattice-boom crane industry and a testament to our technological and manufacturing capabilities. Including sales made at BAUMA, our overall crane segment backlog stood at $85 million as of April 13, 2001. 44 Marine segment sales for the first quarter were $43.8 million, compared with $12.2 million for the same period in 2000. Marine segment operating earnings for the first quarter were $4.6 million, compared with $2.4 million for the first quarter of 2000. Our acquisition of Marinette Marine in the fourth quarter of 2000 accounted for the majority of the sales and earnings increase. However, our organic sales rate was 22% and our earnings growth rate was 13%. The marine segment has just completed another active winter repair season. This season included more than 20 dry dockings at our Sturgeon Bay and Toledo facilities, and work continued steadily on the hopper dredge Liberty Island. In addition, quoting activity remained high at our Sturgeon Bay, Toledo, and Cleveland operations, as well as at Marinette Marine. Interest expense for the quarter ended March 31, 2001 was $4.1 million, compared to $2.5 million for the same period last year. This increase in interest expense is due to the additional debt incurred to fund acquisitions and to repurchase shares of Manitowoc stock during 2000. Our effective tax rate was approximately 38% for the quarters ended March 31, 2001 and 2000. Results of Operations for the Years Ended December 31, 1998, 1999 and 2000 The following table sets forth selected items from our consolidated statements of earnings as a percentage of net sales, for the periods indicated:
Years ended December 31, ------------------- 1998 1999 2000 ----- ----- ----- Net sales: Foodservice equipment................................. 45.4% 46.0% 48.7% Cranes and related products(1)........................ 48.2 47.3 43.1 Marine................................................ 6.4 6.7 8.2 ----- ----- ----- Total............................................... 100.0 100.0 100.0 Cost of sales........................................... 72.2 71.6 73.0 ----- ----- ----- Gross Profit............................................ 27.8 28.4 27.0 Engineering, selling and administrative expenses........ 13.9 13.0 13.2 Amortization............................................ 0.7 0.9 0.9 ----- ----- ----- Earnings from operations................................ 13.2 14.5 12.9 Interest expense........................................ (1.4) (1.3) (1.7) Other expense-net....................................... (0.2) (0.3) (0.2) ----- ----- ----- Earnings before income tax.............................. 11.6 12.9 11.0 Income taxes............................................ 4.3 4.8 4.1 ----- ----- ----- Net earnings............................................ 7.3 8.1 6.9 ===== ===== =====
- -------- (1) During 2000, we reclassified certain boom truck costs formerly reported as a component of net sales to cost of sales, due to the implementation of Emerging Issues Task Force (EITF) No. 99-19, "Reporting Revenues Gross as a Principal versus Net as an Agent." As a result, sales and cost of sales were increased in our crane segment by $18.8 million in 1999 and $9.1 million in 1998. Net sales increased 5.9% in 2000 to $873.3 million from $824.3 million in 1999. This increase was driven by acquisitions. Net sales in 1999 increased 17.1% compared to $703.9 million in 1998. This increase was caused half by internal growth and half from acquisitions made since 1997. Gross profit as a percent of net sales declined in 2000 to 27.0% from 28.4% in 1999 and 27.8% in 1998. The decline in 2000 was due to decreased volumes in our foodservice and crane segments, inefficiencies caused by current year investments in manufacturing process improvements, increased project work in our marine segment and by lower gross margins on businesses acquired in 2000 and 1999. The 1999 increase in gross margin versus 1998 was due to higher volumes in all three segments, synergies achieved in the realignment of the two groups within our foodservice segment and productivity improvements achieved within our crane segment. 45 We maintained engineering, selling and administrative expenses during 2000 at 13.2% of net sales versus 13.0% of net sales in 1999 and 13.9% of net sales in 1998. The maintenance of this engineering, selling and administrative expenses ratio in 2000 was due to the flexibility of our fixed cost structure and our resulting ability to control costs in light of lower volumes. We successfully maintained this cost ratio during 2000 notwithstanding our completion and assimilation of five acquisitions and the investigation of several others. The decrease in engineering, selling and administrative expenses as a percent of sales in 1999 versus 1998 was achieved through continuing cost controls in all three segments as well as the implementation of operating efficiencies within our foodservice and crane segments. Amortization expense of $8.2 million during 2000 increased 10.7% over the $7.4 million reported in 1999. Amortization expense in 1999 increased 51.4% over the $4.9 million recorded in 1998. This increase in amortization expense in 1999 and 2000 is the result of the additional goodwill recognized related to the eight acquisitions we have completed since the beginning of 1998 (not including the acquisition of Potain). Our operating income in 2000 of $112.7 million, or 12.9% of net sales, decreased 5.3% versus the $119.0 million, or 14.4% of net sales, reported for 1999. Operating earnings for 1999 were 28.4% higher than the $92.6 million, or 13.2% of net sales, reported for 1998. Interest expense during 2000 of $14.5 million was 34.5% higher than the amount recorded during 1999. Interest expense of $10.8 million in 1999 was 10.8% higher than the $9.7 million recorded in 1998. This increase in interest expense during 1999 and 2000 was due to a combination of the additional debt incurred to fund acquisitions and to repurchase 1.9 million shares of our stock during 2000. The effective interest rate paid on all outstanding debt remained constant at 6.9% as of December 31, 2000, 6.7% as of December 31, 1999 and 6.3% as of December 31, 1998. These rates remained relatively stable in spite of the rising interest rate environment that began in the middle of 1999. We controlled our exposure to interest rate increases over this period in three ways. First, we effectively used interest rate hedges on variable rate debt. Second, we benefited from our favorable fixed-rate borrowings. Third, we effectively used alternative borrowing vehicles outside of our existing revolver facility, such as short-term commercial paper borrowings. The 2000 effective income tax rate was 37.3%, compared to 37.0% in 1999 and 36.9% in 1998. The increase in our effective income tax rate over this three- year period is due to increasing amounts of non-deductible goodwill amortization expense arising from acquisitions. Cranes and Related Products Segment
1998 1999 2000 -------- -------- -------- (In Thousands) Net sales......................................... $339,051 $389,510 $376,250 Operating income.................................. 48,116 64,840 62,876 Operating margin.................................. 14.2% 16.6% 16.7%
The 3.4% decrease in crane segment sales in 2000 was due to decreased domestic sales volumes of lower tonnage units in our lattice-boom crawler crane business. In addition, our boom truck business also experienced decreased sales volumes combined with a shift in boom truck sales mix toward lower tonnage units. The 14.9% increase in net sales in 1999 versus 1998 was due to increased sales volumes of medium-to-high tonnage units in the lattice-boom crawler crane business as well as the acquisition of USTC Inc. in November 1998 and increased sales penetration by our boom truck businesses into the rental industry. Operating income in our crane segment declined 3.0% in 2000 primarily due to lower sales volumes and the shift of product sales mix in the boom truck business toward lower tonnage units. Operating margins remained consistent in 2000 with 1999 levels primarily due to the net effect of deteriorating product margins offset by improved engineering, selling and administrative expenses margins. Gross margins declined during 2000 primarily due to lower sales volumes in all of the segment's businesses, the shift in boom truck product 46 sales mix toward lower tonnage units and competitive pricing pressures experienced by the boom truck business. Engineering, selling and administrative expenses margins improved during the year as the segment continued to take advantage of cost reduction synergies within the boom truck business and cost reduction initiatives implemented amongst all crane segment businesses. Operating income in 1999 increased 34.8% primarily due to the USTC acquisition completed in November 1998 and increased sales volumes at each of the segment's businesses. Operating margins improved in 1999 due to the same reasons as noted above. Foodservice Equipment Segment
1998 1999 2000 -------- -------- -------- (In Thousands) Net sales......................................... $319,457 $379,625 $425,080 Operating income.................................. 52,950 65,372 61,368 Operating margin.................................. 16.6% 17.2% 14.4%
Foodservice segment net sales rose 12.0% to $425.1 million in 2000 compared to 1999 levels. This increase was due exclusively to acquisitions. These acquisitions included: Kyees Aluminum, acquired in April 1999 and included in results for all of 2000, but only part of 1999; Beverage Equipment Supply Company, acquired in February 2000; Multiplex Company, Inc., acquired in March 2000; and Harford Duracool LLC, acquired in April 2000. Internal sales for the foodservice segment in 2000 were flat versus 1999 levels. The 18.8% increase in net sales in 1999 versus 1998 was due to increased demand for ice-cube machines resulting from the introduction of the "Q" series product by Manitowoc Ice and the acquisitions made during the year, which included Manitowoc Beverage Systems in January 1999 and Kyees Aluminum in April 1999. The 6.1% decrease in operating income during 2000 versus 1999 was due to volume decreases in our businesses serving the beverage industry, decreased sales volumes of walk-in refrigerators and freezers, and $1.5 million invested in manufacturing process improvements at our ice-machine and private label refrigerator manufacturing locations during 2000. The decrease in operating margin in 2000 was due to the reasons mentioned above compounded by the lower operating margins of acquired businesses. The 23.5% increase in operating income in 1999 over 1998 was primarily due to increased sales volumes and cost reductions achieved in the realignment of our foodservice segment into groups along market channels. Marine Segment
1998 1999 2000 ------- ------- ------- (In Thousands) Net sales............................................ $45,412 $55,204 $71,942 Operating income..................................... 6,978 7,297 8,902 Operating margin..................................... 15.4% 13.2% 12.4%
Marine segment revenues increased 30.3% in 2000 versus 1999. Internal sales growth was 8.3%. Sales growth during 2000 was due to increased project and repair revenues at our traditional facilities during the year and the acquisition of Marinette in November 2000. Revenues increased 21.6% during 1999 versus 1998 primarily due to higher amounts of project work and robust levels of repair and maintenance work during the year. Segment operating income increased 22.0% during 2000 versus 1999 levels due to the acquisition of Marinette in November 2000 and the additional project and repair volumes experienced during the year. Operating margins declined during the year due to the continued shift of revenues toward project work, exacerbated by the acquisition of Marinette, which traditionally has lower margins. 47 Operating income increased 4.6% in 1999 compared to 1998. This was primarily due to additional volumes in all of the marine segment's activities including project, repair, and docking services. Operating margins decreased in 1999 due to the shift in revenue mix toward more project work versus 1998 levels. General Corporate Expenses
1998 1999 2000 -------- -------- -------- (In Thousands) Net sales (consolidated)....................... $703,920 $824,339 $873,272 Corporate expenses............................. (10,543) (11,166) (12,313) Percent of sales............................... (1.5%) (1.4%) (1.4%)
Corporate expenses during 2000, 1999 and 1998 were consistent as a percent of net sales at 1.4% in 2000 and 1999, and 1.5% in 1998. The 10.3% increase in corporate expenses during 2000 was due to $1.1 million of expenses related to unrealized acquisitions. The 5.9% increase in expenses during 1999 was primarily due to increased payroll and travel expenses. Domestic Market Conditions The United States economy experienced a slowdown during the last half of 2000. The state of the U.S. economy, high oil prices, weather and low water levels on the Great Lakes impacted each of our segments during 2000. Our foodservice businesses experienced flat internal sales growth; cranes saw a decline in domestic revenues during 2000 as compared to 1999; and internal domestic sales growth for our marine segment expanded during the year due to increased project and repair work. Cranes While the first half of 2000 continued at the brisk industry pace of the last few years, the second half of the year slowed considerably. A combination of interest rate increases and the general economic slowdown had a deteriorating effect on the construction industry as a whole. We felt this decrease to the largest extent in our boom truck business and our smaller tonnage crawler cranes. Large capacity boom trucks and large crawler cranes were less affected. Crane fleet utilization remains high and contractors continue to report increased quotation activity. Foodservice The foodservice industry started 2000 on a strong note. By the end of the first quarter, the ice cube machine industry was posting year-over-year growth of over 11%, and we almost doubled that rate. Interest rate increases coupled with an unusually cool and wet summer resulted in an industry that closed 2000 just under 1% ahead of 1999. Our other foodservice operations (with the exception of the beverage segment) posted similar results. While we expect some slowing in the number of new domestic units being built in the quick service and lodging segments, there are positive signs for growth in other segments that should partially offset any slowdown. Those segments include full service, casual dining and the convenience store markets. The major oil companies, coming off a period of consolidation and reporting strong financial performance, indicate they will intensify spending in their convenience operations in the near-term. We also see opportunities with existing locations. Many of the chain account locations in the U.S. were built during the eighties and early nineties. As their focus for growth turns from increasing the number of units to increasing same store sales, competition likely will drive remodeling and menu expansion. At Diversified Refrigeration, Inc., the demand for high-end domestic appliances continues to grow. While that segment is certainly not recession proof, we have not experienced any of the slowdown seen by other traditional home appliance manufacturers. 48 Marine The marine segment is continuing its recent growth trends driven most dramatically by the acquisition of Marinette, but also by the aging of the Great Lakes fleet, increased utilization of the vessels driven by lower water levels resulting in more trips with lighter cargoes and the strength of the dredging market. We expect the Oil Pollution Act of 1990 requirements to create a strong demand for double-hulled tanks and barges. International Market Conditions Our international sales were approximately 9% of total revenues in 2000. This amount was down slightly from 1999. Cranes International business was relatively flat in 2000. Segments related to energy, petrochemical and oil and gas exploration began to show some improvement late in the year. Mainstream crane utilization appears stable and many markets look to general economic expansion in the near term. Energy related users will begin to look toward upgrading equipment fleets over the next several years. Foodservice The foodservice segment international sales increased approximately 41% in 2000 driven primarily by the acquisition of Multiplex in March 2000. While domestic new-store construction in the quick service restaurant segment softens, expansion outside the U.S. is intensifying. This is particularly true in Europe and Asia, and to a lesser extent in Latin America. In Europe, the economy is finally starting to shake off the doldrums of the past few years. The euro countries experienced real gross domestic product growth of 3.5% in 2000. With a strengthening euro, the investment climate is once again favorable and the demand for ice is steadily increasing as western menus capture a larger audience. Certain Asian economies also experienced higher economic growth in 2000, generating accelerated investment activity. China, in particular, is seeing robust growth in both international and newly developed local quick service restaurants. Latin America is just beginning to show signs of improved economic conditions. In the past few years, Mexico has become an increasingly important market for the foodservice segment. In South America, we have intensified our efforts to establish our foodservice segment's brands. During the fourth quarter of 2000, we opened a distribution center in Uruguay to serve South America. This should enable us to capture a larger market share as the South American economies recover. Marine The marine segment is primarily focused on the U.S. We continue, however, to prepare and bid vessels for research, patrol and defense mission profiles to a broad range of foreign governments. We continue to effectively and quickly complete emergency repairs for foreign flag vessels moving through the Great Lakes. We are also expanding our capabilities to serve our customers by investment in what are already the most effective facilities on the Great Lakes and by increasing our capability to complete dockside and in-voyage repairs. Acquisitions Our growth in 2000 versus 1999 was mainly due to the acquisitions that we made during the last several years. With the completion of the acquisition of Potain, we have completed ten acquisitions since January 1, 1998, and we continue to seek new acquisition candidates in each of our segments. All of the acquisitions 49 described below were funded with cash flow from operations as well as borrowings under our credit facilities in existence at the time of the acquisition and recorded using the purchase method of accounting. Each of these acquisitions is included in our consolidated statements of earnings beginning with the date of acquisition. 2000 Acquisitions On November 20, 2000, we completed the acquisition of Marinette, a builder of mid-sized commercial, research and military vessels located in Marinette, Wisconsin. Marinette had total revenues in 1999 of approximately $100.0 million. We paid an aggregate price of approximately $66.1 million for all of the outstanding shares of the company, which is net of $18.6 million of cash acquired and includes $0.5 million for direct acquisition costs and $17.4 million of assumed liabilities. The preliminary estimate of the excess of the purchase price over the estimated fair value of the net assets acquired is $45.3 million. The purchase price for this acquisition is subject to a post- closing working capital adjustment to be settled in 2001. On April 7, 2000, we acquired substantially all the net business assets of Harford Duracool, LLC of Aberdeen, Maryland for an aggregate purchase price of $21.2 million, which includes direct acquisition costs of $0.5 million, assumed liabilities of $1.4 million and the payment of a post-closing working capital adjustment of $0.3 million. Harford had sales of approximately $17.0 million in 1999. The excess of the purchase price over the estimated fair value of the net assets acquired is $15.0 million. We completed the acquisition of all the outstanding stock of Multiplex Company, Inc., of St. Louis, Missouri, on March 31, 2000. Multiplex, which had sales of approximately $31.0 million in 1999, is a manufacturer of beverage- dispensing equipment. We acquired Multiplex for an aggregate purchase price of $20.5 million, which is a net of $3.7 million of cash acquired, and included $0.4 million of direct acquisition costs and assumed liabilities of $5.3 million. The excess of the purchase price over the estimated fair value of the net assets acquired is $12.7 million. During 2000, we also completed the acquisitions of certain assets of Pioneer Holdings LLC, the outstanding shares of Beverage Equipment Supply Company, and the remaining shares of Hangzhou Manitowoc Wanhua Refrigeration Company, our Chinese joint venture. We paid a total aggregate consideration for these acquisitions of $18.2 million, which is net of cash received and includes direct acquisition costs of $0.2 million and assumed liabilities of $2.8 million. 1999 Acquisitions We acquired Kyees Aluminum, Inc., a leading manufacturer of cooling components for all of the major suppliers of fountain soft-drink beverage dispensers on April 9, 1999. Based in La Mirada, California, Kyees is a technology leader in the manufacture of cold plates--a key component used to chill soft drinks in dispensing equipment. The aggregate purchase price paid for Kyees was $28.5 million, which is net of $1.0 million of cash acquired and includes direct acquisition costs of $0.3 million, assumed liabilities of $2.2 million and includes payment of a $1.3 million post-closing net worth adjustment. The excess of the purchase price over the estimated fair value of the net assets acquired is $24.1 million. On January 11, 1999, we completed the acquisition of Purchasing Support Group, renamed Manitowoc Beverage Systems. Manitowoc Beverage Systems is a beverage systems integrator, with nationwide distribution of backroom equipment and support system components serving the beverage needs of restaurants, convenience stores, and other outlets. The aggregate purchase price paid for Manitowoc Beverage Systems was $43.7 million, which is net of cash acquired of $0.8 million and includes direct acquisition costs of $0.5 million and assumed liabilities of $5.9 million. The excess of the purchase price over the estimated fair value of the net assets acquired is $34.0 million. 50 1998 Acquisitions On November 3, 1998 we purchased Powerscreen U.S.C., Inc. (doing business as USTC, Inc.), based in York, Pennsylvania for an aggregate price of $51.5 million, which includes $0.5 million of direct acquisition costs, $7.4 million of assumed liabilities and the receipt of a post-closing net worth adjustment of $2.1 million. USTC builds three proprietary product lines: boom trucks, rough terrain forklifts, and material-handling equipment. The excess of the purchase price over the estimated fair value of the net assets acquired is $38.0 million. We acquired a 50% ownership interest in Fabbrica Apparecchiature per la Produzione del Ghiaccio S.r.l. (F.A.G.) of Milan, Italy, a manufacturer of ice machines, on September 9, 1998. This purchase also included an option to purchase an additional 30% ownership over the next five years. Liquidity and Capital Resources Historical for the Quarter Ended March 31, 2001 Cash flow from operations was positive in the first quarter, totaling $11.1 million, compared with cash from operations of $1.1 million in the first quarter of 2000. This increase was primarily the result of changes in working capital amounts and decreased net income. Total funded debt was $209.3 million at the end of the first quarter 2001, representing a debt-in capital ratio of 46% at March 31, 2001, as compared to 48% at December 31, 2000. Historical for the Year Ended December 31, 2000 Cash flows from operations during 2000 were $63.0 million, representing a decrease of 39.1% from $103.4 million in 1999 and an increase of 11.0% from the $56.8 million reported in 1998. The following table summarizes our sources and uses of cash during 2000.
2000 ---------- (In Thousands) Sources of cash Net earnings.................... $ 60,268 Non-cash adjustments to income(1)...................... 26,147 Borrowings...................... 106,926 Proceeds from sale of fixed assets......................... 3,481 Exercises of stock options...... 339 -------- Total......................... 197,161 -------- Uses of cash Acquisitions.................... 98,982 Stock repurchases............... 49,752 Capital expenditures............ 13,415 Dividends....................... 7,507 Changes in operating assets and liabilities.................... 23,368 Other........................... 251 -------- Total......................... 193,275 -------- Net cash flow..................... $ 3,886 ========
- -------- (1) Includes depreciation, amortization, deferred income taxes, deferred finance fees and loss on sale of fixed assets. 51 During 2000, there was a net increase in our outstanding borrowings under our existing credit facilities of $106.9 million to $218.9 million at December 31, 2000 from $112.0 million at December 31, 1999. As a result, our debt-to- capital ratio at the end of 2000 reached 48.4% versus 32.5% at the end of 1999. This increase during 2000 was driven primarily to fund the five acquisitions and one joint venture buy-out we completed during the year as well as the repurchase of 1.9 million shares of our stock. The $99.0 million we spent on acquisitions during 2000 is broken down by segment as follows: $46.0 million in our foodservice segment; $49.0 million in our marine segment; and $4.0 million in our crane segment. Of the total spent for all our 2000 acquisitions, approximately $2.3 million was for acquisition related expenses. We completed the repurchase of 1.9 million shares of our common stock during 2000 at an average price of $26.42 per share. These shares were repurchased under two separate authorizations from the board of directors for the repurchase of a total of 2.5 million shares. At December 31, 2000, we had authority to purchase up to 600,000 more shares. A total of $13.4 million was spent during 2000 for capital expenditures. The following table summarizes 2000 capital expenditures and depreciation by segment.
Capital Expenditures Depreciation ------------ ------------ (In Thousands) Foodservice equipment.............................. $ 8,883 $6,168 Cranes and related products........................ 2,883 2,915 Marine............................................. 1,481 437 Corporate.......................................... 168 352 ------- ------ Total............................................ $13,415 $9,872 ======= ======
As a primary driver of EVA, we will continue to focus on maximizing our cash flows from operations to attempt to keep the working capital employed in the businesses at the minimum level required for efficient operations. Shareholders' equity was $233.8 million, or $9.31 per diluted share, at December 31, 2000, versus $232.2 million, or $8.86 per diluted share, at the end of 1999. The increase in shareholders' equity was primarily due to net earnings of $60.3 million and proceeds from the exercise of stock options of $0.3 million, net of the $49.8 million repurchase of our common shares and the payment of $7.5 million in common stock dividends during the year. Pro Forma After consummation of the acquisition of Potain and the related financing transactions, including the sale of the old notes, we would have had pro forma indebtedness as of March 31, 2001 of approximately $566.1 million. At the closing of the acquisition of Potain, we borrowed the following amounts under the senior credit facility: . $175.0 million on term loan A, which matures in five years; . $175.0 million on term loan B, which matures in six years; and . $44.6 million on the $125.0 million revolving credit facility, which matures in five years. The undrawn amount under the revolving credit facility is available for working capital and general corporate purposes, including the issuance of letters of credit, which were approximately $0.8 million at the closing. After giving effect to the acquisition of Potain and the related financing transactions, including the sale of the old notes, we had approximately $80.6 million of availability under the terms of the revolving credit facility at the closing. 52 The new senior credit facility and the indenture for the notes pose various restrictions and covenants on us that could potentially limit our ability to respond to market conditions, to provide for unanticipated capital investments, to raise additional debt or equity capital or to take advantage of business opportunities. See "Description of Indebtedness" and "Description of the Notes--Certain Covenants." We continue to fund capital expenditures to improve the cost structure of our businesses, to invest in new processes and technology, and to maintain high quality production standards. The level of capital expenditures in our foodservice segment exceeded that of the other two segments and exceeded depreciation due to this segment's current year investment in new processes such as demand flow technology, and its investment in new-product introductions. We believe that this trend in capital expenditures outpacing depreciation will continue in 2001 due to continued implementation of demand flow production technology throughout the segment and continued new-product introductions. We expect that the level of capital expenditures in our crane and marine segments will be moderately higher than 2000 levels due to process improvement initiatives, new-product introductions and the addition of Marinette into our marine segment. Our pro forma capital expenditures are anticipated to increase to $34.5 million in 2001 from $23.2 million in 2000. This increase is due to expenditures of $3.0 million on a new corporate headquarters building and $11.3 million of expenditures associated with year 2000 acquisitions. We expect our pro forma capital expenditures to decline to $32.0 million in 2002. This two-year capital expenditure level is in line with our historic average capital expenditures. After giving effect to the acquisition of Potain on the related financing transactions, our pro forma cash and marketable securities would have been $47.6 million at March 31, 2001, compared with $16.0 million at March 31, 2000. Our primary cash requirements are expected to include working capital, interest and principal payments on indebtedness, capital expenditures, dividends and potentially future acquisitions. Our primary sources of cash are expected to be cash flow from operations and borrowing under the new revolving credit facility. Based upon current and anticipated future operations, we believe that cash on hand and available borrowings will be adequate to meet future working capital, capital expenditures, debt service and other capital requirements for at least the next two years. We cannot assure you, however, that our business will generate cash flow that, together with the other sources of capital, will enable us to meet those requirements. Quantitative and Qualitative Disclosures About Market Risk We are exposed to market risks from changes in interest rates, commodities and, to a lesser extent, foreign currency exchange. To reduce these risks, we selectively use financial instruments and other proactive management techniques. All hedging transactions are authorized and executed under clearly defined policies and procedures, which prohibit using financial instruments for trading purposes or speculation. Discussion regarding our accounting policies and further disclosures on financial instruments are included in notes 1 and 5 of our notes to the consolidated financial statements. Interest Rate Risk We use interest rate swaps to modify our exposure to interest rate movements. This helps minimize the adverse effect of interest rate increases on floating rate debt. Under these agreements, we contract with a counter-party to exchange the difference between a fixed rate and floating rate applied to the notional amount of the swap. Our existing swap contract expires at October, 2002. The interest payments or receipts from interest rate swaps are recognized in net income as adjustments to interest expense on a current basis. We enter into swap agreements only with financial institutions that have high credit ratings, which, in our opinion, limits exposure to credit loss. At March 31, 2001, we had outstanding one interest rate swap agreement with a financial institution, with a notional principal amount of $12.5 million. The effect of this agreement on our interest expense in 2000 was not significant. The fair value of this swap agreement was nominal at March 31, 2001. On that date, the interest rate under this swap agreement was 6.3%. 53 Commodity Prices We are exposed to fluctuating market prices for commodities including steel, copper and aluminum. Each of our business segments is subject to the effects of changing raw material costs caused by movements in underlying commodity prices. We have established programs to manage the negotiations of commodity prices. Some of these programs are centralized within business segments, and others are specific to a business unit. In general, we enter into contracts with our vendors to lock in commodity prices at various times and for various periods to limit our near-term exposure to fluctuations in raw material prices. Currency Risk In 2000, we had limited exposure to foreign currency exchange fluctuations in our European and Southeast Asian operations due to the small amount of transactions processed in relation to the total for the whole company, and the relative stability of the currencies exchanged. We will continue to utilize foreign currency hedges to manage our exposure, when necessary. Use of these instruments and strategies has been modest in the past. Contingencies The United States Environmental Protection Agency identified us as a potentially responsible party under the Comprehensive Environmental Response Compensation and Liability Act, liable for the costs associated with investigating and cleaning up the contamination at the Lemberger Landfill Superfund Site near Manitowoc, Wisconsin. Eleven of the potentially responsible parties formed the Lemberger Site Remediation Group and have successfully negotiated with the United States Environmental Protection Agency and Wisconsin Department of Natural Resources to settle the potential liability at the site and fund the cleanup. Approximately 150 potentially responsible parties have been identified as having shipped substances to the site. The latest estimates indicate that the remaining costs to clean up the site are nominal. Although liability is joint and several, our share of the liability is estimated to be 11% of the total cleanup costs. Prior to December 31, 1996, we accrued $3.3 million in connection with this matter. Expenses charged against this reserve in 2000, 1999 and 1998 were not significant. Remediation work at this site has been completed, with only long-term pumping and treating of groundwater and site maintenance remaining. Recently Adopted Accounting Changes In June 1999, the Financial Accounting Standards Board issued Statement of Financial Accounting Standard (SFAS) No. 137, "Accounting for Derivative Instruments and Hedging Activities--Deferral of the Effective Date of FASB Statement No. 133." This issuance delayed the effective date of SFAS 133 for us until the first quarter of 2001. We adopted SFAS 133 on January 1, 2001. The effects of the adoption were immaterial to our financial statements. 54 BUSINESS We are a diversified industrial manufacturer with leading market positions in our three principal markets: cranes; foodservice equipment; and marine services in the Great Lakes region. In our crane business, we design, manufacture and market a comprehensive line of crawler cranes, tower cranes and boom trucks with capacities ranging from 10 tons to 1,433 tons. Our cranes are used in a wide variety of applications, including energy, petrochemical and industrial projects, infrastructure development such as road, bridge and airport construction, commercial and high-rise residential construction, mining and dredging. In our foodservice business, we design, manufacture and market full product lines of ice making machines, walk-in and reach-in refrigerator/freezers, fountain beverage delivery systems and other foodservice refrigeration products for the restaurant, lodging, convenience store and institutional foodservice markets. In our marine service business, we provide shipbuilding repair and maintenance service in the U.S. Great Lakes region. We own four shipyards and operate over 55% of the drydock capacity, based on footage, serving the U.S. Great Lakes commercial fleet. For the year ended December 31, 2000, we had net sales of $873.3 million, EBITDA of $130.7 million and net earnings of $60.3 million, reflecting five- year compound annual growth rates of 14.4%, 20.4% and 23.8%, respectively. On a pro forma basis for the same period, we had net sales of $1.1 billion, EBITDA of $172.2 million and net earnings of $49.0 million. We believe we are: . the leading provider of high capacity crawler cranes (over 150 tons) with an estimated 50% of worldwide sales; . one of two leading providers of tower cranes in the world with an estimated greater than 25% of worldwide sales; . the leading provider of ice making machines in the United States with an estimated 40% of U.S. sales; . the leading provider of walk-in refrigerator/freezers in the United States; and . the leading provider of marine services in the Great Lakes region. Over the last six years we have grown both internally and through selective acquisitions. We have introduced or acquired 125 new products since 1996. New products we have introduced since 1998 represented approximately 60% of our 2000 net product sales. With the completion of the acquisition of Potain, we have completed 16 acquisitions since 1995. These acquired businesses generated 52.8% of our pro forma 2000 net sales. In 1993, we adopted EVA as a management tool to guide our investment, acquisition and operating decisions. EVA defines value creation as the cash return a business generates over and above its weighted average of capital. We believe the disciplined use of EVA in our decision-making helps us to invest capital efficiently, reduce operating costs and maximize our profitability and cashflow from operations. Competitive Strengths We believe the following strengths are the primary drivers of our track record of growth and profitability: Leading Market Positions. We have served the crane and foodservice industries since 1925 and 1945, respectively, and we believe the Manitowoc name is among the best-known brands in those markets. We believe we hold a top three market share in all of our principal product categories and we believe that approximately 65% of our net sales are derived from product categories in which we have the first or second largest market share. We believe our strong market shares and our substantial installed base of equipment in the crane and 55 foodservice markets, together with our established global distribution networks and our expertise in product development, provide a significant competitive advantage. Diverse Revenue Base. Our revenue base is diversified across three industries and five continents. Our crane, foodservice and marine segments, respectively, represent approximately 56.1%, 37.5% and 6.4% of our pro forma 2000 net sales. Approximately 27% of our pro forma 2000 net sales were generated outside of North America, principally in Europe with 21.7% and Asia with 2.9%, and we expect our international sales to grow faster than domestic sales over the next several years. We also have a diverse customer base, with no single crane or foodservice customer representing greater than 5.0% of our total pro forma net sales for 2000. While both our crane and foodservice segments are influenced by general economic conditions, they each serve different markets that do not react in lockstep with each other. Our marine segment provides additional stability, as its repair and maintenance services are primarily non-discretionary and the majority of our new construction contracts are with government agencies whose investment decisions are not necessarily influenced by general economic conditions. Strong Track Record of Product Innovation. Over the last six years we have introduced or acquired 125 innovative new products to better serve our customers' needs in all of our markets. We currently hold over 140 patents covering new product and technology innovations. . Cranes. In May 2000, we launched the most successful new crane in Manitowoc's history, the 275-ton capacity Model 999 crawler crane. We received orders for 80 Model 999 cranes in the first seven months following its introduction. In April 2001, we introduced the 110-ton Model 915 duty-cycle; the 110-ton Model 1015 foundation crane; the Model 555, a 150-ton limited duty-cycle lift crane; and the Model 19000, a 500-ton high-capacity liftcrane. . Foodservice. In 2000, we introduced our patented QuietQube ice-cube machines that feature our proprietary CVD technology and provide capacities of up to 2,000 pounds of ice per day. Our QuietQube CVD product line substantially reduces noise and heat exhaust during operation as well as floor space requirements, compared to available competing products. In 2000, we also introduced our first ice flake machine, which expands our penetration into the healthcare industry and provides an entree into the supermarket segment where flakes are the preferred type of ice for keeping meat and seafood fresh. Cost Efficient Manufacturing. We believe we are a highly efficient manufacturer and service provider in each of our segments. Establishing production facilities in China for our ice machines in 1995 provided us a low cost manufacturing base for worldwide distribution of some of our foodservice products. In 2000, we implemented a "mixed model/demand flow" manufacturing process in our foodservice segment, which enables us to shorten lead times and respond more effectively to customer demand, while reducing required inventory levels. In our crane segment, we maintain modern, efficient production facilities that enable us to produce a high quality product with low lead time requirements. Through a series of steps over the last two years, including outsourcing of non-core manufactured components, redesign of production processes, elimination of production bottlenecks at our facilities and investment in technology, we have reduced the average manufacturing lead time for our crawler cranes from approximately 128 days in 1998 to approximately 70 days in 2000. Excellent Customer Service. We support our products and our customers in the field through an extensive after-market customer service network. In our crane segment, we operate full-service machine shops and a fleet of fully equipped trucks that provide complete machining services at customer locations--or anywhere in the field--24 hours a day. Down-time in the field can be extremely costly for our customers and we believe our responsiveness and the quality of our customer service is an important differentiating factor for us in the lifting market. In our foodservice segment, we offer a continuous schedule of maintenance and repair training seminars during the year for independent service providers and our distributors. In 2000, over 14,000 individuals from around the world participated in our training seminars. We will only sell our foodservice 56 products in markets where trained and qualified service personnel are available locally, and we work to ensure that quality product service is available in every market served. In our marine segment, we consistently complete repair, maintenance and new construction projects on time and within budget, which we believe is an important factor influencing our customers' decision to select us. Business Strategy With manufacturing and marketing operations in the U.S., Europe and Asia, our strong brand names and leading market positions, we believe we are well- positioned to serve our existing customers and to capitalize on growth opportunities around the world. We will continue to pursue our strategy by focusing on new product development, improving manufacturing efficiency, expanding our geographic reach and selectively pursuing acquisitions, using EVA as the principal management tool for evaluation of our operating and investment decisions. Emphasize New Product Development and Product Quality. We will continue to invest capital every year to develop new products with improved cost-effective functionality in response to changing customer requirements. We will also continue to improve and enhance our existing products. Maintain Highly Efficient Manufacturing. With EVA as a guiding principle, our manufacturing management teams are constantly seeking opportunities to improve productivity to increase our cash flow and return on invested capital. Our current initiatives include: . implementation of mixed model/demand flow in more of our foodservice business units over the next year; . introduction of additional welding robotics to our crane segment; and . expansion of our manufacturing operations in Asia. Extend Our Geographic Reach. We will continue to extend our reach deeper into existing geographic regions and into new markets. The Potain acquisition significantly extends our international presence with the addition of seven European and one Asian manufacturing sites and an established distribution network in 75 countries, including within Europe, Asia and Latin America. We intend to capitalize on the cross-selling opportunities both for our crawler crane and boom truck products through Potain's distributors overseas and for Potain's tower crane products through our Manitowoc distributors in North America. We recently opened a distribution center in Uruguay to serve the foodservice market in South America. In addition to establishing our own facilities in new markets, we will pursue joint ventures and licensing agreements where appropriate to further extend our manufacturing and distribution networks around the world. For example, we recently entered into a licensing agreement with Blue Star Limited in India for the production and marketing of refrigerators and freezers. Selectively Expand Through Acquisition. We will continue to consider selective acquisitions that improve our market position by extending our product lines or geographic reach. In evaluating a potential acquisition candidate, we generally require that the candidate demonstrate the following: . leadership in its market niche; . the potential for easy integration into our existing operations; and . the potential for generating strong cash flow. Additionally, our objective for each acquisition is for it to be earnings per share accretive within two years and EVA positive within three years. With the completion of the acquisition of Potain, we have completed ten acquisitions since January 1, 1998. 57 Deploy Capital Efficiently. We believe our track record of strong cash flow is attributable to our commitment to EVA. We began implementation of EVA principles in 1993 and have generated nearly $145.0 million of economic value for our investors since 1995. More than 25% of our workforce is incentivized by EVA performance. We plan to continue investing our capital based on EVA principles in order to maximize cash generation and increase our return on invested capital. Industry Overview Cranes and Related Products Our crane segment principally manufactures products for three markets in the crane industry: lattice-boom crawler cranes, tower cranes and boom trucks. Our lattice-boom crawler cranes are used to lift material and equipment in a wide variety of applications and end markets, including heavy construction, bridge and highway, duty cycle, infrastructure, energy-related and crane rental industries. Our boom truck cranes serve commercial, industrial, utility, construction and maintenance applications. Our top slewing tower cranes are generally sold to large building and construction contractors as well as to rental companies. Our self-erecting tower cranes are sold primarily to small and medium-sized building and construction contractors as well as rental companies. We also manufacture scissor lift platforms used in maintenance and construction, which we primarily sell to general equipment companies as a safer alternative to scaffolding and ladders. According to published industry sources, aggregate world demand for lifting equipment, including cranes, draglines and excavators, is estimated to have grown at an annual compound rate of 4.5% from $6.0 billion in 1989 to an estimated $9.3 billion in 1999, strongly outpacing growth in overall gross fixed investment with a growth rate of 2.7% and the construction industry as a whole with a growth rate of 3.8%. North America's market for lifting equipment was roughly $4.0 billion in 1998, the largest among the world's regions and equivalent to over 40% of total global demand. The North American market has grown briskly since the early 1990's, benefiting from economic expansion in the U.S. and Canada. The second largest regional market for lifting equipment is the Asia/Pacific region. Aggregate Asia/Pacific demand for lifting equipment in 1998 equaled $2.2 billion or roughly 24% of the world market. Although the level of industrialization, size and quality of building stock, degree of development of the infrastructure and similar factors vary widely across the region, a significant number of the countries in the region are advanced enough to be intensive users of lifting equipment and associated capital equipment. The majority of demand is generated in Japan, China and South Korea. The Western European market for lifting equipment was approximately $2.1 billion in 1998, third largest in the world behind North America and Asia/Pacific. As in those regions, the economies of Western Europe feature highly evolved industrial, commercial, residential and public sectors which are intensive users of infrastructural networks. Lattice-Boom Cranes. Lattice-boom cranes were developed in the 1920s to fill the need for heavy lift construction applications and continue to be utilized today principally in heavy construction and infrastructure development applications. Lattice-boom crawler cranes are widely accepted as the most economical lifting tool for capacity requirements above 100 tons and are unique in their ability to maneuver while lifting. Typical product applications include infrastructure work, petroleum-related projects, power generation projects and dockside/material handling. As each project may require differing boom lengths and lifting capacities, contractors generally tend to rent specific machines as needed rather than own a fleet of machines with varying capabilities. We sell our lattice-boom cranes in various markets, including North America, Europe, the Middle East and Asia. Demand for lattice-boom cranes is primarily dependent upon industrial and construction activity as well as replacement cycles for existing cranes. Tower Cranes. Tower cranes were developed in the 1950s to lift and place construction material accurately and quickly at various heights, without utilizing substantial square footage on the ground for set-up or operation. Tower cranes are primarily utilized in the commercial building and construction industry, as well as in specialty infrastructure development, such as ports and dams; to a lesser extent, tower cranes are utilized in residential construction. 58 The tower crane market is divided into two major segments, top slewing cranes and self-erecting cranes. We believe the worldwide market for top slewing cranes is focused in Western Europe. We believe that prior to the 1997 economic crisis in Asia, Asia represented a significantly larger portion of total top slewing crane sales. Other significant markets include North America, Latin America and Russia. We believe France, Germany and Italy currently represent the largest markets for self-erecting cranes, and together currently account for a majority of total estimated sales of new cranes. However, we believe that other geographic markets, notably the Americas, should experience significant growth as self-erecting cranes are introduced and the cost effectiveness of tower cranes becomes more widely appreciated. Boom Trucks. A boom truck is a hydraulic telescopic crane mounted to a commercial truck chassis. The telescopic boom truck is used primarily by contractors engaged in the industrial, commercial, public works, residential construction, utility and oilfield service industries. They are also used in maintenance and materials-handling applications to lift materials or personnel at the same job site or to move material to another location. Over the past 20 years, boom trucks have replaced truck mobile cranes in the market for under 30 ton lifting devices, due to their mobility. Aerial Work Platforms. The aerial work platform market can be divided into three product types. These are scissor lifts, articulated lifts and telescopic boom lifts. Our product offering is currently focused on the scissor lift market. The aerial work platform industry in North America has developed over the past two decades as end-users have realized that aerial work platforms are an efficient and safer alternative to scaffolding and ladders. The products are used for indoor or outdoor applications in a variety of construction, industrial and commercial settings that require workers to be lifted to high elevations. Rapid growth of the industry can be attributed to efficiency considerations as well as federal and supranational regulations mandating safety standards for people working in elevated areas. Foodservice Equipment Our ice-cube machines, combination ice/beverage dispensers and dispensing valves, long-draw soft drink and beer dispensing systems and our other foodservice equipment are used by restaurants, hotels and other institutions, as well as the soft-drink industry. Our walk-in refrigerators and freezers are used in restaurants, hotels and other institutions. Sales of our various foodservice equipment products are driven primarily by demand from participants in the food and beverage industry. According to published industry sources, the foodservice industry, which includes restaurants, cafeterias, institutions, hotel kitchens, kiosks and caterers, had estimated sales of $376.0 billion in 2000. Over the past 30 years, the industry has grown at a compounded annual rate of 7.5% from $43.0 billion to its current level. According to published industry sources, the foodservice industry spent approximately $7.5 billion to purchase new equipment in 2000, up 3.0% from 1999. A major driver of foodservice equipment sales is consumption of food prepared away from home. This includes expenditures on food and beverage served in restaurants and institutional cafeterias as well as food prepared in supermarkets and other stores. Although the growth in overall food consumption is slow and driven primarily by population growth, growth in food prepared away from home has enjoyed strong secular expansion in past decades. This is due to several trends: the increase in the labor participation among women, rising disposable incomes, greater value placed on leisure and personal time and the emergence of eating out as a lifestyle trend. According to the U.S. Bureau of Economic Analysis, approximately 40% of inflation-adjusted food spending in the U.S. is spent on purchased meals, which includes restaurants and take-out food, up from 27% in 1970, 33% in 1980 and 37% in 1990. This measure may even underestimate the consumption of food and beverage prepared away from home, as it does not include food served in institutions and prepared food bought 59 at supermarkets. Additionally, one in every 2.5 meals is prepared outside the home and almost half of all U.S. adults are restaurant patrons on a typical day. Demand in the commercial foodservice and retail food equipment industries is driven by several industry trends. These trends include continued expansion and ongoing replacement and renovation by major restaurant and lodging chains, increased consumer expenditures for food prepared away from home, increased prepared food offerings at supermarkets and convenience stores, supplier consolidation and increased international foodservice demand. Marine Operations The Great Lakes commercial fleet is comprised of over 140 vessels and integrated tug/barges. In addition, many U.S. Coast Guard vessels and other smaller ships sail the lakes. A number of foreign-flagged oceangoing ships also sail the Great Lakes via the St. Lawrence Seaway. The owners of the commercial fleets are primarily companies engaged in transporting and transloading of bulk commodities, including iron ore, coal, grain, limestone and petroleum, and finished goods primarily for the steel, utility, mining, and chemical industries. This entire fleet of vessels comprise the potential market for Great Lakes shipyards, providing ship-repair and shipbuilding services. Commercial vessels must receive inspections every five years, providing shipyards with a steady stream of recurring business. Under the Merchant Marine Act of 1920, U.S. flagged vessels are obligated to utilize U.S. based shipyards for rebuilding services. Demand for ship repair, maintenance, conversion and new construction services is currently being driven by longer shipping seasons, an aging fleet serving the Great Lakes, continued high utilization of the existing fleet and moves toward automating the existing fleet to enhance operating efficiency and reduce shore time. 60 Products and Services We are a diversified manufacturing company with market-leading operations in cranes and related products, foodservice equipment and marine services. We sell our key products through the following principal business segments:
Percentage of Pro Forma Business Segment 2000 Net Sales Key Products Key Brands ---------------- -------------- --------------------------- ------------ Cranes and Related Products........... 56.1% Crawler- and truck-mounted Manitowoc lattice-boom cranes; top Potain slewing, topless, self- CraneCare erecting cranes; special Femco cranes; hydraulically powered telescopic boom trucks; scissor lift platforms; crane rebuilding and remanufacturing services; aftermarket replacement parts for cranes and excavators; industrial repair and rebuilding services for metal-forming, scrapyard, steel recycling, and aggregate equipment. Foodservice Equipment.......... 37.5% Commercial ice-cube Manitowoc machines, ice flakers, and SerVend storage bins; ice/beverage Multiplex dispensers; long-draw soft- Kolpak drink and beer dispensing Harford- systems; walk-in Duracool refrigerators and freezers; McCall reach-in refrigerators and Koolaire freezers; refrigerated RDI under-counters and food Flomatic prep tables; private label Compact residential Icetronic refrigerator/freezers; post-mix beverage dispensing valves; cast aluminum cold plates; compressor racks and modular refrigeration systems; backroom beverage equipment distribution services. Marine.............. 6.4% Inspection, maintenance and repair of freshwater and saltwater vessels. New construction services for commercial, government, military, and research vessels of all varieties, including self-unloading bulk carriers, double-hull tank barges, integrated tug/barges and dredges. Also provides industrial repair and maintenance services for refineries, power plants and heavy industrials.
Cranes and Related Products Our crane segment designs and manufactures a diversified line of crawler- and truck-mounted lattice-boom cranes, hydraulically powered telescopic boom trucks, rough-terrain forklifts and material handling equipment, which we sell under the "Manitowoc" name for use by the energy, petrochemical, construction, mining, pulp and paper and other industries. Our crane segment also designs and manufactures a diversified line of top slewing and self-erecting cranes, which we sell under the "Potain" name, for use in construction and other industries primarily in Europe and Asia. We also specialize in crane rebuilding and remanufacturing services, aftermarket replacement parts for cranes and excavators, and industrial repair and rebuilding services for metal-forming, scrapyard and recycling equipment, which we sell under the "Femco" name. Many of our customers purchase one crane together with several attachments to permit use of the crane in a broader range of lifting applications and other operations. Various crane models combined with available options have lifting capacities ranging from approximately 10 to 1,433 U.S. tons and excavating capacities ranging from 3 to 15 cubic yards. We also offer a line of scissor lift aerial platforms that are sold under the "Liftlux" name. 61 Lattice-boom cranes. We market our lattice-boom crawler cranes through our subsidiary, Manitowoc Cranes, Inc., the largest manufacturer of lattice-boom crawlers in North America. Lattice-boom cranes consist of a lattice-boom, which is a fabricated, high-strength steel structure which weighs less and provides higher lifting capacities than a telescopic boom of similar length, mounted on a base which is either crawler- or truck-mounted. The lattice-boom design significantly reduces ground-bearing pressures enabling a lattice-boom crane to pick-and-carry virtually any rated load. The lattice-boom sections, together with the crane base, are transported to and erected at a project site. We currently offer ten models of lattice-boom cranes with lifting capacities ranging from approximately 80 to 1,433 tons, which are used to lift material and equipment in a wide variety of applications and end markets, including heavy construction, bridge and highway, duty cycle and infrastructure and energy related projects. These cranes are also used by the crane rental industry, which serves all of the above industries. Lattice-boom crawler cranes may be classified according to their lift capacity--low capacity and high capacity. Low capacity crawler cranes with 150- ton capacity or less are often utilized for general construction and duty cycle applications. We offer two models in this crane category: the Model 111, an 80- ton capacity, self-erecting crawler crane; and the Model 222, a 100-ton capacity, self-erecting crawler crane. High capacity crawler cranes with greater than 150-ton capacity are utilized to lift materials in a wide variety of applications and are often utilized in heavy construction, energy-related, bridge and highway and dockside applications. We offer five high-capacity models: the Model 777, a 175-ton capacity, self-erecting crawler crane; the Model 888, a 230-ton capacity, self- erecting crawler crane; the Model 999, a 275-ton capacity, self-erecting crawler crane; the Model 2250, a 300-ton capacity, self-erecting crawler crane; and the Model 21000, a 1,000-ton capacity liftcrane. The Model 999, which we introduced in 2000, is the most successful new crane in our history with orders received for 80 units at December 31, 2000. The Model 999 is one of the largest self-erecting crawler cranes available and offers the industry's first ever, fully interchangeable crawler that can be mounted on either side of the crane base. This allows for shorter set up time, increased reliability and the opportunity to offer our customers the ability to expand their crane fleets at a lower cost. In April 2001, we introduced the 110-ton Model 915 duty-cycle crane; the 110-ton Model 1015 foundation crane; the Model 555, a 150-ton limited duty- cycle lift crane; and the Model 19000, a 500-ton high-capacity liftcrane. We also manufacture two lattice-boom, self-erecting truck cranes: the M- 250T, a 300-ton capacity crane; and the Model 777T, a 220-ton capacity crane. These cranes serve the same markets as our high capacity, crawler cranes and differ from their crawler counterparts only to the extent that they are mounted onto a truck rather than a crawler, and can travel at highway speeds. Crawler Crane Attachments. Manitowoc Cranes offers customers various attachments that provide our cranes with greater capacity in terms of height, movement and lifting. Our principal attachments are: MAX-ER(TM) attachment, luffing jibs, tower attachments and RINGER(TM) attachments. The MAX-ER is a trailing, counterweight, heavy-lift attachment that dramatically improves the reach, capacity and lift dynamics of the basic crane to which it is mounted. It can be transferred between cranes of the same model for maximum economy and occupies less space than competitive heavy-lift systems. A luffing jib is a fabricated structure similar to, but smaller than, a lattice-boom. Mounted at the tip of a lattice-boom, a luffing jib easily adjusts its angle of operation permitting one crane with a luffing jib to make lifts at additional locations on the project site. It can be transferred between cranes of the same model to maximize utilization. A RINGER attachment is a high-capacity lift attachment that distributes load reactions over a large area to minimize ground-bearing pressure. It can also be more economical than transporting and setting up a larger crane. During 2000, Manitowoc Cranes introduced several new attachments, including the MAX-ER 2000, which boosts the capacity of the Model 2250 lattice-boom crawler from 300 to 500 tons and the Model 21000 from 831 to 1,433 tons, while also providing over 600 feet of reach for the Model 2250 and 640 feet of reach 62 for the Model 21000. In April 2001, we introduced a 78.5-ton luffing jib for the Model 999, which will enable boom-and-jib combinations having a total reach of up to 480 feet. Tower Cranes. Manitowoc Cranes, under the Potain brand name, designs and manufactures tower cranes utilized primarily in the building and construction industry. Tower cranes offer the ability to lift and place material more quickly and accurately than other types of lifting machinery without utilizing substantial square footage on the ground. Tower cranes include a stationary vertical tower and a horizontal jib with a counterweight, which is placed near the top of the vertical tower. A load carrying cable runs through a trolley which is on the jib, enabling the load to move along the jib. The jib rotates 360 degrees, which compensates for the crane's inability to move, thus increasing the crane's work area. Operators are primarily located where the jib and tower meet, which provides superior visibility above the worksite. We offer a complete line of tower crane products, including top slewing, luffing jib, topless, self-erecting cranes and special cranes for dams, harbors and other large building projects. Top slewing cranes are the most traditional form of tower cranes. Top slewing tower cranes have a tower and multi-sectioned horizontal jib. Suspension cables supporting the jib extend from the tower. These cranes rotate from the top of their mast and can increase in height with the project. Top slewing cranes are transported in separate pieces and assembled at the construction site in one to three days depending on the height. Potain offers 56 models of top slewing tower cranes with lifting capabilities ranging between 40 and 2,200 meter-tons. These cranes are generally sold to large building and construction groups, as well as rental companies. Luffing jib tower cranes, which are a type of top slewing crane, have an angled rather than horizontal jib. Unlike other tower cranes which have a trolley that controls the lateral movement of the load, luffing jib cranes move their load by changing the angle of the jib. These cranes are transported in separate pieces and assembled at the construction site in one to three days depending on the height. The cranes are utilized primarily in urban areas where space is constrained or in situations where several cranes are installed close together. Potain currently offers 11 models of luffing jib tower cranes with maximum jib lengths of 23 meters. Self-erecting tower cranes are generally trailer-mounted and unfold from four sections, two for the tower and two for the jib. The smallest of Potain's models unfolds in less than 8 minutes; larger models erect in a few hours. Self-erecting cranes rotate from the bottom of their mast. Potain offers 22 models of self-erecting cranes with lifting capacities ranging between 10 and 80 meter-tons which are utilized primarily in light construction and residential applications. Boom Trucks. In 2000, we consolidated our hydraulic boom truck operations under a single new entity--Manitowoc Boom Trucks. The name change represents the unification of operations of our three former boom truck product lines: Manitex, USTC and Pioneer. A boom truck is a hydraulically powered telescopic crane mounted on a commercial truck chassis. Boom trucks are generally lighter and have lower lifting capacities than truck cranes. Additionally, unlike a truck crane, a boom truck can haul up to several thousand pounds of payload on its cargo deck while travelling at highway speeds. Manitowoc Boom Trucks offers 48 different models on four different platforms: the S-series rear-mounted cranes; the C-series traditional behind-the-cab cranes; the X-series mid- capacity cranes; and the new T-series tractor-mount design. These models have lifting capacities ranging from 10 to 42 tons, the largest capacity boom truck in the marketplace. Backlog. The year-end backlog of crane products includes orders that have been placed on a production schedule, and those orders that we have accepted and that we expect to be shipped and billed during the next year. Manitowoc's backlog of unfilled orders for cranes and related products at December 31, 2000 approximated $93.4 million, as compared with $136.0 million a year earlier. The decrease is primarily due to reduced lead times and increased operations throughput as we have implemented flexible manufacturing process and improved efficiencies. As a result, order rates are a better indicator of business strength than traditional backlog figures. Potain's backlog of unfilled orders for cranes and related products as of December 31, 2000, approximated $56.0 million and has historically remained consistent throughout the year at approximately two months' sales. 63 Foodservice Equipment Our foodservice equipment segment designs, manufactures and markets commercial ice-cube machines and storage bins; walk-in refrigerators and freezers; reach-in refrigerators and freezers; refrigerated undercounters and food preparation tables; private label residential refrigerators/freezers; ice/beverage dispensers; post-mix beverage dispensing valves; cast aluminum cold plates; long draw beer dispensing systems; compressor racks and modular refrigeration systems; plus backroom beverage equipment distribution services. Products are sold under the brand names Manitowoc, Kolpak, SerVend, McCall, Flomatic, Compact, Icetronic and RDI. Commercial Ice-Cube Machines. Ice machines are classified as either dedicated or combination machines and can be further classified by size, capacity and the type of ice they produce. There are four basic types of ice made by ice machines: cubes, flakes, chiplets and nuggets. Machines that make ice-cubes, the most popular type of machine, are used by the foodservice industry for drinks, ice displays and salad bars. The average salad bar uses 35 pounds of cubed ice per day per cubic foot of display area. Flake ice can cool an item faster than any other form of ice and is used to a great extent in processing applications, such as keeping meats and seafood fresh as well as in medical facilities for use in ice packs. Nuggets, which are made by compacting flaked ice, are used mostly in drink dispensing machines. Manitowoc Ice manufactures 22 models of commercial ice-cube machines, serving the foodservice, convenience store, healthcare, restaurant and lodging markets. Our ice-cube machines make ice in cube, flake and chiplet form, and range in daily production capacities from 45 to 2,000 pounds. The ice-cube machines are either self-contained units, which make and store ice, or modular units, which make, but do not store, ice. We offer the world's only commercial ice making machines with patented cleaning and sanitizing technology. This feature eliminates the downtime and labor costs associated with periodic cleaning of the water distribution system. All units feature patented technology with environmentally friendly hydrofluorocarbon refrigerants. We also manufacture the patented QuietQube ice-cube machines, which feature CVD, or cool vapor defrost, technology, operate heat-free, are 75% quieter than non- CVD units and produce more ice in a smaller footprint. These new QuietQube machines are ideally suited for use in new restaurants, which often feature more open designs, and for use with the self-service beverage systems increasingly found in quick service restaurants and convenience stores. The QuietQube Ice/Beverage Series is the only ice-cube machine especially made to fit on beverage dispensers. Our ice-cube machines are sold throughout North America, Europe and Asia. Walk-in Refrigerators and Freezers. Kolpak and Harford-Duracool manufacture modular and fully assembled walk-in refrigerators, coolers and freezers for restaurants, institutions, commissaries and convenience stores. Walk-in refrigerators and freezers are large, insulated storage spaces fitted with refrigeration systems. Most walk-ins are custom-made from modular insulated panels constructed with steel or aluminum exteriors and foamed-in-place urethane insulation. Refrigerator/blower units are installed in order to maintain an even temperature throughout the refrigerated space. Walk-ins come in many models with various types of doors, interior shelving, and viewing windows. Larger units, such as refrigerated warehouses, may utilize liquid chillers as a refrigeration system due to their greater efficiency in large scale applications. Units range in size from 200 to 60,000 cubic feet. We also produce a complete line of express or pre-assembled walk-ins. Reach-in Refrigerators and Freezers. Reach-in coolers and freezers are typically constructed from stainless steel and have a thick layer of insulation in the walls, doors and floor. The cabinets have one to three doors, either glass or steel and come in a variety of sizes. Although reach-ins resemble household refrigerators, commercial versions utilize few plastic parts, incorporate larger compressor units and do not usually combine refrigerator and freezer compartments in the same unit. These design features stem from the needs of end-users and heavy duty usage of most reach-ins. For example, in contrast to the typical household refrigerator, commercial reach-ins may be opened and closed hundreds of times per day, placing mechanical strain on the structure and greatly increasing the cooling load on the refrigeration system. McCall Refrigeration produces 64 self-contained upright and under-counter refrigeration equipment, including a full line of reach-ins and refrigerated food preparation equipment for restaurants, institutions and commissaries. We make over 50 standard models of reach-ins plus custom-built units. The units come in one, two and three-door models with storage capabilities up to 72 cubic feet. Dispensers and Products. Manitowoc Ice, SerVend, Manitowoc Beverage Systems, Multiplex and Kyees Aluminum produce ice-cube dispensers, beverage dispensers, ice/beverage dispensers, post-mix dispensing valves and cast aluminum cold plates and related equipment for use by quick service restaurants, convenience stores, bottling operations, movie theaters and the soft-drink industry. Ice- cube dispensers come in the form of floor and countertop models with daily production capacities ranging from 45 to 310 pounds, while ice/beverage dispensers include traditional combination ice/beverage dispensers, drop-in dispensers and electric countertop units. Dispensing systems are manufactured for the dispensing of soda, water and beer. Soda systems include remote systems that produce cold carbonated water and chill incoming water and syrup prior to delivery to dispensing towers. Beer systems offer technically advanced remote beer delivery systems which are superior by design, allow increased yields, provide better under-bar space utilization and allow multiple stations to operate from one central unit. In 2000, SerVend broadened its market by introducing a line of counter-electric beverage dispensers. Manitowoc Beverage Systems, Inc., or MBS, is a systems integrator with nationwide distribution of backroom equipment and support system components. MBS serves the needs of restaurants, convenience stores and other outlets. It operates in the Northeast and Atlantic Coast regions, as well as portions of Arizona, California, Florida, Texas, Georgia and Nevada. In February 2000, Beverage Equipment Supply Company, or BESCO, was integrated into MBS. BESCO is a leading wholesale distributor of beverage dispensing equipment serving 14 states primarily in the Midwest. BESCO represents more than 50 different equipment manufacturers with products ranging from beverage dispensing equipment and systems to draft beer-dispensing systems. Backlog. The backlog for unfilled orders for our foodservice equipment segment at December 31, 2000 and 1999 was not significant because orders are generally filled within 24 to 48 hours. Marine We operate four shipyards located in Sturgeon Bay, Wisconsin; Marinette, Wisconsin; Toledo, Ohio; and Cleveland, Ohio. Our shipyard in Sturgeon Bay consists of approximately 55 acres of waterfront property. Four of those acres, which connect two operating areas of the shipyard, are leased under a long term ground lease. Our Sturgeon Bay facilities include approximately 295,000 square feet of enclosed manufacturing and office space, a 140 foot by 1,158 foot graving dock, a 250 foot graving dock, and a 600 foot, 7,000-ton, floating dry- dock. We also lease shipyard facilities at Toledo and Cleveland for our marine segment. These facilities include waterfront land, buildings, and 800-foot and 550-foot graving docks. On November 20, 2000, we acquired Marinette, a leading builder of mid-sized commercial, research and military vessels in the U.S. Located in Marinette, Wisconsin, just across Green Bay from our Bay Shipbuilding facility, Marinette operates one of the largest shipyards in the Great Lakes. Marinette offers complete in-house capabilities for all shipbuilding disciplines and is currently under contract to build a series of 16 ocean-going buoy tenders for the U.S. Coast Guard, seven of which have been delivered to date. Marinette is one of three firms competing to replace all of the Coast Guard's larger deepwater vessels under a multi-year contract. Marinette's new build capability provides a strong compliment to our historic expertise in repair, maintenance and refurbishment. The year-end backlog for our marine segment includes repair and maintenance work presently scheduled which will be completed in the next year. At December 31, 2000, the backlog for our marine segment approximated $33.4 million, compared to $39.3 million one year ago. The project backlog for Marinette at December 31, 2000 was $160.0 million to be completed over the next several years. Marinette's backlog does not include options for additional vessels, yet to be awarded. 65 Marketing and Distribution Cranes Our crane segment benefits from two strong distribution networks: an established base of independent distributors and two wholly-owned distributors around the world, which currently focus on crawler cranes and boom trucks; and a network of agents around the world currently focused on Potain's tower crane products. While our distributors do not generally sell our products exclusively, we believe that, in many cases, our products represent a significant portion of the distributor's business. Distributors generally do not carry inventories of new cranes, except for the smaller truck cranes. Most distributors maintain service facilities and inventories of replacement parts. We employ service representatives that usually assist customers in the initial set-up of new cranes. We do not generally provide financing for our independent distributors or their customers; however, dealers frequently assist customers in arranging financing and may accept used cranes as partial payment on the sale of new cranes. Export sales are usually made to our foreign subsidiaries or independent distributors, in addition to sales made to domestic customers for foreign delivery. Foreign sales are made on letter of credit or similar terms. Foodservice Equipment Our foodservice equipment segment markets its products worldwide through independent wholesale distributors, chain accounts and government agencies. Our distribution network now extends to 80 distributors in 70 countries in Western Europe, the Far East, the Middle East, the Near East, Latin America, North America, the Caribbean and Africa. We have overseas distribution facilities in Scotland, Uruguay and Italy. Our acquisition of Multiplex, a manufacturer of beverage dispensers and backroom equipment and support system components, in 2000 has enabled us to increase sales of ice and refrigerated foodservice equipment in Europe. Marine All of our shipbuilding operations are conducted at our Sturgeon Bay, Wisconsin and Marinette, Wisconsin facilities. Our ship repair, servicing and dry-docking services are provided at our Toledo, Ohio and Cleveland, Ohio facilities. Engineering, Research and Development Our extensive engineering, research and development capabilities have been key drivers of our marketplace success. We engage in research and development activities at all of our significant manufacturing facilities. We have a staff of over 175 engineers and technicians who are responsible for improving existing products and developing new products. We incurred research and development expenditures of $4.7 million in 1998, $6.9 million in 1999 and $6.7 million in 2000. Our team of engineers focuses on developing innovative, high performance, low maintenance products, which are intended to create significant brand loyalty among customers. Design engineers work closely with our manufacturing and marketing staff, enabling us to identify quickly changing end-user requirements, implement new technologies and effectively introduce product innovations. Close, carefully managed relationships with dealers, distributors and end users help us identify their needs, not only for products, but for the service and support that is critical to their profitable operation. As part of our ongoing commitment to provide superior products, we intend to continue our efforts to design products that meet evolving customer demands and reduce the period from product conception to product introduction. Nearly 60% of the products we now sell have been acquired or introduced within the last three years. In 2000, SerVend, our largest beverage-equipment company, broadened its market reach by introducing a line of 66 counter-electric beverage dispensers. Manitowoc Ice launched a number of new ice machines, including a series of ice flakers and the Series 800 IB ice/beverage dispenser, which leverages our patented Cool Vapor Defrost technology introduced in 1999. With orders received for 80 units in the first seven months on the market, our Model 999 lattice-boom crane became the most successful new product launched in the 75-year history of our large-crane subsidiary. Raw Materials and Supplies The primary raw material that we use is structural and rolled steel, which is purchased from various domestic sources. We also purchase engines and electrical equipment and other semi- and fully-processed materials. Our policy is to maintain, wherever possible, alternate sources of supply for our important materials and parts. We maintain inventories of steel and other purchased material. We have been successful in our goal to maintain alternative sources of raw materials and supplies, and therefore, are not dependent on a single source for any particular raw material or supply. Patents, Trademarks, Licenses We hold in excess of 140 patents pertaining to our crane and foodservice products, and have presently pending applications for additional patents in the United States and foreign countries. In addition, we have various registered and unregistered trademarks and licenses that are of material importance to our business. While we believe our ownership of this intellectual property is adequately protected in customary fashions under applicable law, no single patent, trademark or license is critical to our overall business. Seasonality Typically, the second and third quarters represent our best quarters in all of our business segments. Since the summer brings warmer weather, there is an increase in the use of ice machines. As a result, distributors build inventories during the second quarter for the increased demand. In our cranes and related products segment, summer also represents the main construction season. Customers require new machines, parts, and service in advance of that season. With respect to our marine segment, the Great Lakes shipping industry's sailing season is normally May through November. Thus, barring any emergency groundings, the majority of repair and maintenance work is performed during the winter months and the work is typically completed during the first and second quarter of the year. 67 Competition We sell all of our products in highly competitive industries. We compete in each of our industries based on product design, quality of products and services, product performance, maintenance costs and price. Several of our competitors have greater financial, marketing, manufacturing and distribution resources than we do. We believe that we benefit from the following competitive advantages: leading market positions, a strong brand name, a reputation for quality products and service, an established network of global distributors, a broad product line and a commitment to engineering design and product innovation. However, we cannot assure you that our products and services will continue to compete successfully with our competitors or that we will be able to retain our customer base or improve or maintain our profit margins on sales to our customers. The following table sets forth our primary competitors in each of our business segments:
Business Segment Products Primary Competitors ---------------- --------------------- -------------------------------- Cranes and Related Lattice-Boom Crawler Hitachi Construction Machinery Products Cranes Co., Ltd.; Kobelco; Liebherr- Werk Ehingen GmbH; Link Belt Construction Equipment Co., a subsidiary of Sumitomo Corporation; and Mannesmann Dematic. Tower Cranes Comensa; Favelle Favco; Jaso Eqiipos de Obra S.A.; Liebherr- Werk Ehingen GmbH; Raimondi; SCM; and Terex Corporation. Boom Truck Cranes Grove Crane and Terex Corporation. Scissor Lift Genie Industries; JLG Industries Platforms Inc.; Pinguely-Haulotte; Skyjack Inc.; and Upright. Foodservice Equipment Ice/Beverage Devices Hoshizaki America, Inc.; Ice-o- matic; I.M.I. Cornelius; Lancer Corporation; Scotsman Industries; and Welbilt Company. Refrigeration Devices American Panel Corporation; Beverage Air; Delfield Company; Kysor/Warren; Master-Bilt; Nor- Lake Incorporated; Traulsen & Co., Inc.; True Food Service Company; and W.A. Brown & Son, Inc. Marine Ship Repair and Alabama Shipbuilding and Construction Drydock; Atlantic Marine; Bender Shipbuilding and Repair; BollingerShip Building; Erie Marine Enterprises; Fraser Shipyards, Inc.; Halter Marine; H. Hansen Industries; Port Weller Drydocks and Swiftships.
Employee Relations As of December 31, 2000, we employed approximately 3,200 persons, of whom about 660 were salaried. We believe our relationship with our employees is good. We have labor agreements with 17 union locals in North America. There have been no work stoppages during the three years ended December 31, 2000. As of September, 2000, Potain employed approximately 2,240 persons and a large majority of Potain's employees belong to French trade unions. 68 Facilities The following table outlines the principal facilities we own or lease:
Approximate Facility Location Type of Facility Square Footage Owned/Leased - ----------------- ------------------------- -------------- ------------ Cranes and Related Products Europe/Asia Moulins, France Manufacturing 345,000 Owned Charliev, France Manufacturing 323,000 Owned/Leased Zhangjiagang, China Manufacturing 245,500 Leased Noe Pereira, Portugal Manufacturing 183,000 Leased La Clayette, France Manufacturing 130,000 Leased Charolles, France Manufacturing 113,000 Leased Niella, Italy Manufacturing 105,500 Owned Arneburg, Germany Manufacturing 63,500 Owned Decines, France Logistics 47,500 Leased Lusigny, France Crane Testing Site 10,000 Owned La Clayette, France Manufacturing 7,000 Owned United States Manitowoc, Wisconsin Manufacturing/Office 278,000 Owned Georgetown, Texas Manufacturing/Office 191,000 Owned York, Pennsylvania Manufacturing/Office 110,000 Owned Punxsutawney, Pennsylvania Manufacturing/Office 71,000 Owned Manitowoc, Wisconsin Assembly/Office 67,000 Leased Pompano Beach, Florida Manufacturing 23,000 Leased Bauxite, Arkansas Manufacturing/Office 22,000 Owned Foodservice Equipment Europe/Asia Hangzhou, China Manufacturing/Office 80,000 Owned Milan, Italy Manufacturing 20,000 Leased Frankfurt, Germany Manufacturing/Office 15,000 Owned United States Manitowoc, Wisconsin Manufacturing 376,000 Owned Parsons, Tennessee Manufacturing 214,000 Owned Sparks, Nevada Manufacturing 150,000 Leased Sellersburg, Indiana Manufacturing/Office 140,000 Owned River Falls, Wisconsin Manufacturing 133,000 Owned St. Louis, Missouri Manufacturing/Office 105,000 Leased La Mirada, California Manufacturing/Office 77,000 Owned/Leased Selmer, Tennessee Manufacturing 72,000 Owned Aberdeen, Maryland Manufacturing/Office 67,000 Owned Clackamus, Oregon Manufacturing 21,000 Leased Marine Marinette, Wisconsin Shipyard 450,000 Owned Sturgeon Bay, Wisconsin Shipyard 220,000 Owned/Leased Toledo, Ohio Shipyard 60,000 Leased Cleveland, Ohio Marine Repair and Storage 8,000 Leased
In addition, we lease sales office and warehouse space in Mokena, Illinois; Franklin, Tennessee; Danbury, Connecticut; Roanoke, Virginia; East Granby, Connecticut; Lithonia, Georgia; Orlando, Florida; Irwindale, California; Dallas, Texas; Buena Park, California; Holland, Ohio; Lombard, Illinois; Decaturville, Tennessee; Reno, Nevada; and Selmer, Tennessee. We lease additional office space in Manitowoc, Wisconsin. We also own a sales office and warehouse facility in Northampton, England and a manufacturing facility in Scott Hills, 69 Tennessee, which is closed and held for sale, and we lease sales offices in Beijing, China; Glasgow, United Kingdom and Seoul, South Korea. Potain leases office and warehouse space in Nantes (Coueron), Toulouse, Lille (Haubourdin), Begles, Montbrison, Dole, Nice, Orleans (Saint Cyr en Val), Vitry sur Seine (which is currently for sale) and Rouen (Le Mesnil Esnard), all of which are located in France; Singapore; and Diligen/Saar, Germany. Potain also owns office and warehouse facilities in Ecully, Bretigny, Vaux en Velin and Vitrolles, all of which are located in France. Environmental Matters The United States Environmental Protection Agency has identified us as a potentially responsible party under the Comprehensive Environmental Response Compensation and Liability Act, liable for the costs associated with investigating and cleaning up contamination at the Lemberger Landfill Superfund Site near Manitowoc, Wisconsin. Approximately 150 potentially responsible parties have been identified as having shipped substances to this site. Eleven of the potentially responsible parties have formed the Lemberger Site Remediation Group and have successfully negotiated with the United States Environmental Protection Agency and the Wisconsin Department of Natural Resources to settle the potential liability at this site and fund the cleanup. Recent estimates indicate that the total costs to clean up this site are nominal. However the ultimate allocations of cost for this site are not yet final. Although liability is joint and several, our percentage share of liability is estimated to be 11% of the total cleanup costs. Prior to December 31, 1996, we accrued $3.3 million in connection with this matter. Expenses charged against this reserve during the quarter ended March 31, 2001 and during 2000, 1999 and 1998 were insignificant. Remediation work at this site has been completed, with only long-term pumping and treating of groundwater and site maintenance remaining. Our remaining estimated liability for this matter, included in other current and noncurrent liabilities at March 31, 2001, is $0.9 million. We are also involved in various other environmental matters, in the United States as well as in other countries, arising from time to time in the normal course of business. At this time, management does not expect these matters to have a material adverse effect on our consolidated financial statements. Potain may similarly have liabilities for environmental matters that arise from time to time in the normal course of business. Based on current information, we do not expect any of these matters to have a material adverse effect on Potain's consolidated financial statements. Legal Proceedings As of March 31, 2001, we had various product-related lawsuits pending. All of these cases are insured with self-insurance retentions of $1.0 million for crane accidents; $1.0 million for foodservice accidents occurring during 1990 to 1996; and $0.1 million for foodservice accidents occurring during 1997 to 2001. The insurer's contribution is limited to $50.0 million. Product liability reserves included in accounts payable and accrued expenses at March 31, 2001 were $8.5 million with $2.7 million reserved specifically for the various cases referenced above and $5.8 million for claims incurred but not reported which were estimated using actuarial methods. The highest current reserve for an insured claim is $0.9 million. Based on our experience in defending against product liability claims, management believes the current reserves are adequate for estimated settlements on aggregate self-insured and insured claims. Any recoveries from insurance carriers are dependent upon the legal sufficiency of claims and the solvency of insurance carriers. We are also involved in various other legal actions, in the United States as well as in other countries, arising from time to time in the normal course of business. After taking into consideration legal counsels' evaluation of such actions, in the opinion of management, we do not expect ultimate resolution to have a material adverse effect on our consolidated financial statements. Potain is similarly involved from time to time in actions for product liability and other matters arising out of its ordinary business operations. Based on current information, we do not expect any of the actions presently pending to have a material adverse effect on Potain's consolidated financial statements. 70 MANAGEMENT The table below sets forth information about our directors and executive officers as of May 31, 2001.
Name Age Position - ---- --- -------- Terry D. Growcock............. 55 President, Chief Executive Officer and Director Glen E. Tellock............... 40 Senior Vice President and Chief Financial Officer Maurice D. Jones.............. 41 General Counsel and Secretary Thomas G. Musial.............. 49 Senior Vice President of Human Resources and Administration Carl J. Laurino............... 39 Vice President and Treasurer Timothy J. Kraus.............. 47 Vice President; President and General Manager, Foodservice Group Robert A. Giebel, Jr. ........ 41 Vice President; President and General Manager, Crane Group Thomas J. Byrne............... 63 Vice President; President and General Manager, Marine Group Dean H. Anderson.............. 60 Director Virgis W. Colbert............. 61 Director Daniel W. Duval............... 65 Director James P. McCann............... 70 Director James L. Packard.............. 58 Director Gilbert F. Rankin, Jr. ....... 68 Director Robert C. Stift............... 59 Director Robert S. Throop.............. 63 Director
Terry D. Growcock. Mr. Growcock has been our president and chief executive officer since 1998. He has also been a director since 1998. From 1996 to 1998, he was president and general manager of Manitowoc Ice, and from 1994 to 1996 he was executive vice president of Manitowoc Equipment Works. Prior to joining us, Mr. Growcock served in numerous management and executive positions with Siebe plc and United Technologies. Glen E. Tellock. Mr. Tellock has been our senior vice president and chief financial officer since 2000. From 1999 to 2000, he was our vice president and chief financial officer, and from 1998 to 1999 he was our vice president of finance and treasurer. He served as our corporate controller from 1992 to 1998, and as our director of accounting from 1991 to 1992. Prior to joining us, Mr. Tellock served as financial planning manager with the Denver Post Corporation and as audit manager for Ernst and Whitney. Maurice D. Jones. Mr. Jones has served as our general counsel and secretary since 1999. Prior to joining us, Mr. Jones was a partner in the law firm of Davis & Kuelthau, S.C. and served as legal counsel for Banta Corporation. Thomas G. Musial. Mr. Musial has been our senior vice president of human resources and administration since 2000. He served as vice president of human resources and administration from 1995 to 2000, as manager of human resources from 1987 to 1995 and as personnel/industrial relations specialist from 1976 to 1987. Carl J. Laurino. Mr. Laurino became vice president and treasurer in May 2001. From 2000 until that time, he was our assistant treasurer. Prior to joining us, Mr. Laurino spent 15 years in the commercial banking industry with Firstar Bank, Norwest Bank and Associated Bank. Timothy J. Kraus. Mr. Kraus became a vice president in 2000. He is also the president and general manager of our foodservice group. He served as general manager of our ice/beverage group from 1999 to 2000, and as executive vice president and general manager of Manitowoc Ice from 1998 to 1999. From 1995 to 1998, Mr. Kraus was vice president of sales and marketing, and from 1989 to 1995 he served as national sales manager. Prior to joining us, Mr. Kraus was president of Universal Nolin. Robert A. Giebel, Jr. Mr. Giebel has served as a vice president since 2000. He also serves as president and general manager of our crane group. Prior to joining us, Mr. Giebel served as vice president and general 71 manager of P&H MinePro Services and as president and chief executive officer of Unit Rig, a division of Terex Corporation. Thomas J. Byrne. Mr. Byrne has been a vice president since 2000. He is also the president and general manager of our marine group. From 1998 to 2000, he served as our vice president of business development. Prior to joining us, Mr. Byrne served as vice president and general manager for the Robertshaw division of Siebe Automotive, N.A. and as vice president of operations for Hamilton Industries. Mr. Byrne also has held senior management positions with Stanley Works and White Consolidated Industries. Dean H. Anderson. Mr. Anderson has been a member of our board of directors since his election in 1992. Since 1997, he has served as senior vice president--strategic development of ABB Vetco Gray Inc., an oilfield equipment manufacturer headquartered in Houston, Texas. Previously, Mr. Anderson served as president of Foster Valve Corporation and as president and chief executive officer of Steego Corporation. Virgis W. Colbert. Mr. Colbert was appointed to our board of directors in 2001. He is executive vice president of Miller Brewing Company, a leading beer brewer and producer headquartered in Milwaukee, Wisconsin. Since 1979, Mr. Colbert has held a variety of operational and senior management positions with Miller Brewing Company. He is also a director of Delphi Automotive Systems Corporation of Troy, Michigan, and of Weyco Group, Inc. of Milwaukee, Wisconsin. Daniel W. Duval. Mr. Duval was appointed to our board of directors in 2000. He is a former vice chairman, president and chief executive officer of Robbins & Myers, Inc., a global manufacturer of specialized fluid management products and systems headquartered in Dayton, Ohio. Previously, Mr. Duval served as president and chief operating officer of Midland-Ross Corp. He also serves on the boards of directors of Arrow Electronics Corp. of Melville, New York; ABC- NACO, Inc. of Downers Grove, Illinois; and National City Bank, the Ohio chartered bank of National City Corporation of Cleveland, Ohio. James P. McCann. Mr. McCann has been a director since his election in 1990. He is a former vice chairman, president and chief operating officer of Bridgestone/Firestone, Inc., a global tire and rubber manufacturer headquartered in Nashville, Tennessee. Previously, Mr. McCann served as executive vice president of North American Tire for Bridgestone/Firestone, Inc. He also has served as president and chief executive officer of Bridgestone U.S.A., Inc. James L. Packard. Mr. Packard was appointed to our board in 2000. Since 1986, he has served as chairman, president and chief executive officer of Regal-Beloit Corporation, a worldwide manufacturer of mechanical power transmission equipment, electric motors and controls, and electric power generators headquartered in Beloit, Wisconsin. Mr. Packard is also a director of Clarcor, Inc. of Rockford, Illinois. Gilbert F. Rankin, Jr. Mr. Rankin has served on our board of directors since his election in 1974. He is a former director of administration, operations and facilities for the College of Engineering at Cornell University in Ithaca, New York. Robert C. Stift. Mr. Stift was elected to our board of directors in 1998. Since 1999, he has been chairman and chief executive officer of Strategic Industries, LLC of Hagerstown, Maryland, a manufacturer of industrial and consumer products. Previously, Mr. Stift served as chairman and chief executive officer of USI Diversified of Hagerstown Maryland, and as chairman and chief executive officer of Grove Worldwide. Robert S. Throop. Mr. Throop was elected to our board of directors in 1992. He is a former chairman and chief executive officer of Anthem Electronics, Inc., a distributor of electronic products headquartered in San Jose, California. Mr. Throop is also a member of the boards of directors of the Coast Distribution System, of Morgan Hill, California, and Azerity, of San Jose, California. 72 DESCRIPTION OF INDEBTEDNESS Senior Credit Facility At the closing of the Potain acquisition, we entered into the senior credit facility. The facilities consist of: . a $175.0 million five-year term loan A; . a $175.0 million six-year term loan B; and . a $125.0 million five-year revolving credit facility. The senior credit facility is guaranteed by all of our domestic subsidiaries. The senior credit facility is secured by a first priority security interest on substantially all of our and our domestic subsidiaries' real and personal property, including all capital stock of our domestic subsidiaries and 65% of the capital stock of our foreign subsidiaries. The senior credit agreement requires us to meet specified financial tests on an ongoing basis, including a minimum consolidated interest coverage ratio, a minimum consolidated fixed charge coverage ratio, maximum consolidated total and senior leverage ratios and minimum net worth. In addition, the senior credit agreement includes customary representations and warranties, customary events of default, including a change of control, and other customary covenants, including covenants that limit our and our subsidiaries' ability to: . prepay principal of or redeem or repurchase the notes or make amendments to the indenture governing the notes; . incur additional debt; . merge with other entities or make acquisitions; . pay dividends or make distributions; . make investments or advances; . create or become subject to liens; and . make capital expenditures. We obtained the senior credit facility, together with issuing the old notes: . to effect the acquisition of Potain; . to retire our existing revolving credit facility and substantially all other outstanding debt, including all of our series A senior notes due 2010 and senior shelf notes due 2010; . to finance fees and expenses associated with the acquisition of Potain and related financing transactions; and . for general corporate and working capital purposes. As of March 31, 2001, we would have used $43.6 million of the $125.0 million revolving credit facility to effect the acquisition of Potain. The undrawn amount under the revolving credit facility is available for general corporate purposes. After completing the acquisition of Potain and the sale of the old notes, we would have had approximately $393.6 million outstanding under the senior credit facility as of March 31, 2001. The senior credit agreement includes provisions permitting an increase on an uncommitted basis in the aggregate amount of the revolving credit facility or the term loan B by up to an aggregate of $100.0 million, subject to certain conditions. Interest on outstanding balances under the senior credit agreement is determined by adding a margin to the base or Eurodollar rate existing for each interest calculation date. For the revolving credit facility, the term loan 73 A and the term loand B, the margin is based on our leverage ratio, which is the ratio of our consolidated debt to last four quarters EBITDA, as defined. As of the closing of the senior credit facility, the interest rate margins on the revolving credit facility and the term loan A were 1.625% in the case of base rate loans and 2.625% in the case of Eurodollar loans, but the margin may range from 1.000% to 1.625% in the case of base rate loans and from 2.000% to 2.625% in the case of Eurodollar loans. For the term loan B, the interest margins at the closing of the senior credit facility were 1.875% in the case of base rate loans and 2.875% in the case of Eurodollar loans, but may range from 1.750% to 1.875% in the case of base rate loans and from 2.750% to 2.875% in the case of Eurodollar loans. We also pay commitment fees on unused availabilities and agency fees in connection with the senior credit agreement. Under the senior credit agreement, we are required to prepay the term loans with 100% of the net proceeds of incurrence of certain debt (other than the notes), certain asset sales, certain insurance and condemnation events and 50% of annual excess cash flow. We may also voluntarily prepay the loans. Industrial Revenue Bonds As of March 31, 2001, we had $3.6 million of industrial revenue bonds outstanding, which relate to our obligations on two properties located in Tennessee and Indiana. These obligations are due in monthly or annual installments, including principal and interest at rates of 2.7% and 10.0% as of March 31, 2001. These obligations mature at various dates through 2004. Potain Debt As of March 31, 2001, Potain had $7.4 million of outstanding bank debt in China with a weighted average interest rate of 6.4%, which matures at various dates in the next five years. Potain also had $1.8 million of bank overdrafts and other miscellaneous debt, with an interest rate of 4.8%. In addition, Potain had $6.7 million of capital lease obligations with a weighted average interest rate of 5.8%. These three instruments will remain in place subsequent to closing of the acquisition. Potain also had outstanding $1.8 million of existing indebtedness in France, which had varying maturities and bore no interest, and $3.9 million of existing indebtedness in Germany, which matures in 2014 and had an interest rate of 8.55% at March 31, 2001. These two debt instruments were fully repaid as part of the transaction. 74 DESCRIPTION OF THE NEW NOTES You can find definitions of capitalized terms used in this description under "--Definitions." For purposes of this section, references to "we," "us" and "our" include only The Manitowoc Company, Inc. and not our subsidiaries. In this description, we refer to the old notes and the new notes collectively as the notes. We issued the old notes, and we will issue the new notes, under an indenture among us, the guarantors and The Bank of New York, as trustee. The following is a summary of the material provisions of the indenture. It does not include all of the provisions of the indenture. We urge you to read the indenture because it defines your rights. The terms of the notes include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939. We have filed the indenture as an exhibit to the registration statement of which this prospectus is a part and incorporate by reference that exhibit into this prospectus. The new notes will be our unsecured obligations, ranking subordinate in right of payment to all of our Senior Debt. We will issue the new notes in fully registered form in denominations of (Euro)1,000 and integral multiples thereof. The trustee will initially act as paying agent and registrar for the notes. The notes may be presented for registration or transfer and exchange at the offices of the registrar. We will pay principal (and premium, if any) on the notes at the trustee's corporate office in New York, New York. At our option, interest may be paid at the trustee's corporate trust office or by check mailed to the registered address of holders of the notes. Any old notes that remain outstanding after the completion of the exchange offer, together with the new notes issued in connection with the exchange offer, will be treated as a single class of securities under the indenture. Luxembourg Listing We will apply to list the new notes on the Luxembourg Stock Exchange in accordance with its rules once the exchange offer has been completed. We must use our best efforts to obtain and maintain such listing in respect of the new notes at all times. So long as the old notes or the new notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, a paying agent will be maintained in Luxembourg at all times that payments are required to be made in respect of the old notes or the the new notes. So long as the old notes or the new notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, a transfer agent will be maintained in Luxembourg, at which office the old notes or the new notes may be transferred. So long as the old notes or the new notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, we will cause a copy of the notice of any change in the paying agents, as well as any other notices to holders of the notes, to be published in a daily newspaper with general circulation in Luxembourg, which we expect to be the Luxemburger Wort. Principal, Maturity and Interest The notes are limited in aggregate principal amount to (Euro)275.0 million. We will issue up to (Euro)175.0 million in aggregate principal amount of new notes in exchange for old notes in the exchange offer. The notes will mature on May 15, 2011. We may issue additional notes from time to time, subject to the limitations set forth under "Covenants--Limitation on Incurrence of Additional Indebtedness." Interest on the notes will accrue at the rate of 10 3/8% per annum and will be payable semiannually in cash on each May 15 and November 15 commencing on November 15, 2001, to the persons who are registered holders of the notes at the close of business on the May 1 and November 1 immediately preceding the applicable interest payment date. Interest on the notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including the date of issuance. The notes will not be entitled to the benefit of any mandatory sinking fund. 75 Redemption Optional Redemption Except as described below, we may not redeem the notes before May 15, 2006. After that date, we may redeem the notes at our option, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the following redemption prices (expressed as percentages of the principal amount thereof) if redeemed during the 12-month period commencing on May 15 of the year set forth below:
Year Percentage ---- ---------- 2006........................................................... 105.188% 2007........................................................... 103.458% 2008........................................................... 101.729% 2009 and thereafter............................................ 100.000%
In addition, we must pay accrued and unpaid interest on the notes redeemed. Optional Redemption Upon Public Equity Offerings At any time, or from time to time, on or prior to May 15, 2004, we may, at our option, use the Net Cash Proceeds of one or more Public Equity Offerings to redeem up to 35% of the face amount of the notes, including any additional notes, outstanding under the indenture at a redemption price of 110.375% of the face amount thereof plus accrued and unpaid interest thereon, if any, to the date of redemption; provided that: (1) at least 65% of the face amount of notes, including any additional notes, outstanding under the indenture remains outstanding immediately after any such redemption; and (2) we make such redemption not more than 90 days after the consummation of any such Public Equity Offering. "Public Equity Offering" means an underwritten public offering of our Qualified Capital Stock pursuant to a registration statement filed with the SEC in accordance with the Securities Act. Selection and Notice of Redemption In the event that we choose to redeem less than all of the notes, selection of the notes for redemption will be made by the trustee either: (1) in compliance with the requirements of the Luxembourg Stock Exchange, if the notes are so listed, and any other principal securities exchange, if any, on which the notes are listed; or, (2) on a pro rata basis, by lot or by such method as the trustee deems fair and appropriate. No notes of a principal amount of (Euro)1,000 or less shall be redeemed in part. If a partial redemption is made with the proceeds of a Public Equity Offering, the trustee will select the notes only on a pro rata basis or on as nearly a pro rata basis as is practicable, subject to Euroclear and Clearstream Luxembourg procedures. Notice of redemption will be mailed by first-class mail at least 30 but not more than 60 days before the redemption date to each holder of notes to be redeemed at its registered address. So long as the notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, we will cause a copy of this notice to be published in a daily newspaper with general circulation in Luxembourg, which we expect to be the Luxemburger Wort. On and after the redemption date, interest will cease to accrue on notes or portions of notes called for redemption as long as we have deposited with the paying agents funds in satisfaction of the applicable redemption price. 76 In connection with any redemption, we will notify the Luxembourg Stock Exchange of any change in the principal amount of the notes outstanding. Subordination The payment of all Obligations on the notes is subordinated in right of payment to the prior payment in full in cash or Cash Equivalents of all Obligations on Senior Debt, including all Obligations with respect to the Credit Agreement, whether outstanding on the Issue Date or incurred after that date. However, payments and distributions made from the trust established pursuant to the provisions described under "--Legal Defeasance and Covenant Defeasance" will not be so subordinated in right of payment so long as the payments into the trust were made in accordance with the requirements described under "--Legal Defeasance and Covenant Defeasance" and did not violate the subordination provisions when they were made. The holders of Senior Debt will be entitled to receive payment in full in cash or Cash Equivalents of all Obligations due in respect of Senior Debt, including interest accruing after the commencement of any bankruptcy or other like proceeding at the rate specified in the applicable Senior Debt whether or not such interest is an allowed claim in any such proceeding, before the holders of notes will be entitled to receive any payment with respect to the notes in the event of any distribution to our creditors: (1) in a total or partial liquidation, dissolution or winding up of our company; (2) in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to us or our assets; (3) in an assignment for the benefit of creditors; or (4) in any marshalling of our assets and liabilities. We also may not make any payment in respect of the notes if: (1) a payment default on Designated Senior Debt or other Senior Debt of at least $25.0 million aggregate principal amount occurs and is continuing; or (2) any other default occurs and is continuing on Designated Senior Debt that permits holders of the Designated Senior Debt to accelerate its maturity and the trustee receives a notice of such default (a "Payment Blockage Notice") from the Representative of any Designated Senior Debt. Payments on the notes may and will be resumed: (1) in the case of a payment default, upon the date on which such default is cured or waived; and (2) in case of a nonpayment default, upon the earlier of (x) the date on which such nonpayment default is cured or waived (so long as no other event of default exists) and (y) 180 days after the date on which the applicable Payment Blockage Notice is received. No new Payment Blockage Notice may be delivered unless and until 360 days have elapsed since the effectiveness of the immediately prior Payment Blockage Notice. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the trustee will be, or be made, the basis for a subsequent Payment Blockage Notice unless such default has been cured or waived for a period of not less than 90 consecutive days. We must promptly notify holders of Senior Debt if payment of the notes is accelerated because of an Event of Default. 77 As a result of the subordination provisions described above in the event of a bankruptcy, liquidation or reorganization of our company, holders of the notes may recover less ratably than our creditors who are holders of Senior Debt. See "Risk Factors--Your right to receive payment on the notes and guarantees is junior to all of our and the guarantors' senior debt." After giving effect to the acquisition of Potain and the related financing transactions and the application of the proceeds therefrom, on a pro forma basis, at March 31, 2001, the aggregate principal amount of our Senior Debt outstanding would have been approximately $411.4 million and we would have had $80.6 million of borrowings available under the Credit Agreement. Guarantees The guarantors will jointly and severally guarantee, on an unsecured senior subordinated basis, our obligations under the indenture and the notes. Each guarantee will be subordinated to Guarantor Senior Debt on the same basis as the notes are subordinated to our Senior Debt. A form of the guarantee is attached as an exhibit to the indenture. The obligations of each guarantor under its guarantee will be limited as necessary to prevent the guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each guarantor may consolidate with or merge into or sell its assets to us or another guarantor that is a Wholly Owned Restricted Subsidiary of ours without limitation, or with other Persons, upon the terms and conditions set forth in the indenture. See "Covenants--Merger, Consolidation and Sale of Assets." In the event all of the Capital Stock of a guarantor is sold by us and the sale complies with the provisions set forth in "Covenants--Limitation on Asset Sales," the guarantor's guarantee will be released. Separate financial statements of the guarantors are not included herein because the guarantors are jointly and severally liable with respect to our obligations pursuant to the notes, and our and the guarantors' aggregate net assets, earnings and equity are substantially equivalent to our net assets, earnings and equity on a consolidated basis. Holding Company Structure We are a holding company for our subsidiaries, with no material operations of our own and only limited assets. Accordingly, we are dependent upon the distribution of the earnings of our subsidiaries, whether in the form of dividends, advances or payments on account of intercompany obligations, to service our debt obligations. In addition, the claims of the holders of the notes are subject to the prior payment of all liabilities, whether or not for borrowed money, and to any preferred stock interest of our subsidiaries other than the guarantors. We cannot assure you that, after providing for all prior claims, there would be sufficient assets available from us and our subsidiaries to satisfy the claims of the holders of notes. See "Risk Factors--If our subsidiaries do not make sufficient distributions to us, we will not be able to make payment on our debt, including the notes." Change of Control Upon the occurrence of a Change of Control, each holder of the notes will have the right to require that we purchase all or a portion of such holder's notes pursuant to the offer described below (the "Change of Control Offer"), at a purchase price equal to 101% of the face amount of the notes plus accrued and unpaid interest on the notes to the date of purchase. Within 30 days following the date upon which the Change of Control occurred, we must send, by first class mail, a notice to each holder of the notes, with a copy to the trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the purchase date, which, unless otherwise required by law, must be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the "Change of Control Payment Date"). So long as the notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, we will cause a copy of this notice to be published in 78 a daily newspaper with general circulation in Luxembourg, which we expect to be the Luxemburger Wort. In connection with any Change of Control, we will notify the Luxembourg Stock Exchange of any Change of Control Offer. Holders of the notes electing to have a note purchased pursuant to a Change of Control Offer will be required to surrender the note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the note completed, to the paying agents at the address specified in the notice prior to the close of business on the third business day prior to the Change of Control Payment Date. Prior to the mailing of the notice referred to above, but in any event within 30 days following any Change of Control, we covenant to: (1) repay in full and terminate all commitments under Indebtedness under the Credit Agreement and all other Senior Debt the terms of which require repayment upon a Change of Control or offer to repay in full and terminate all commitments under all Indebtedness under the Credit Agreement and all other such Senior Debt and to repay the Indebtedness owed to (and terminate the commitments of) each lender that has accepted such offer; or (2) obtain the requisite consents under the Credit Agreement and all other such Senior Debt to permit the repurchase of the notes as provided below. We must first comply with the covenant in the immediately preceding sentence before we will be required to either repurchase notes pursuant to the provisions described below or send the notice pursuant to the provisions described above. Our failure to comply with the covenant described in the immediately preceding sentence will constitute an Event of Default described in clause (3) after the giving of the notice and the lapse of time as described therein and not in clause (2) under "Events of Default" below. If a Change of Control Offer is made, we cannot assure you that we will have available funds sufficient to pay the Change of Control purchase price for all the notes that might be delivered by holders of the notes seeking to accept the Change of Control Offer. In the event we are required to purchase outstanding notes pursuant to a Change of Control Offer, we expect that we would seek third party financing to the extent we do not have available funds to meet our purchase obligations. However, we cannot assure you that we would be able to obtain this financing. Neither our Board of Directors nor the trustee may waive the covenant relating to a holder's right to redemption upon a Change of Control. Restrictions in the indenture described herein on our ability and the ability of our Restricted Subsidiaries to incur additional Indebtedness, to grant liens on our or the guarantor's property, to make Restricted Payments and to make Asset Sales may also make more difficult or discourage a takeover of us, whether favored or opposed by our management. Consummation of any such transaction in certain circumstances may require redemption or repurchase of the notes, and we cannot assure you that we or the acquiring party will have sufficient financial resources to effect such redemption or repurchase. These restrictions and the restrictions on transactions with Affiliates may, in some circumstances, make more difficult or discourage any leveraged buyout of us or any of our subsidiaries by our management. While these restrictions cover a wide variety of arrangements which have traditionally been used to effect highly leveraged transactions, the indenture may not afford the holders of the notes protection in all circumstances from the adverse aspects of a highly leveraged transaction, reorganization, restructuring, merger or similar transaction. We will comply with the requirements of Rule 14e-1 under the Securities Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the "Change of Control" provisions of the indenture, we will comply with the applicable securities laws and regulations and shall not be deemed to have breached our obligations under the "Change of Control" provisions of the indenture by virtue thereof. 79 Notwithstanding anything to the contrary in this section, we will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this section and purchases all notes validly tendered and not withdrawn under such Change of Control Offer. Covenants The indenture contains, among others, the following covenants: Limitation on Incurrence of Additional Indebtedness We will not, and will not permit any of our Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, "incur") any Indebtedness other than Permitted Indebtedness; provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, we and the guarantors may incur Indebtedness, including Acquired Indebtedness, and any Restricted Subsidiary of ours that is not or will not, upon such incurrence, become a guarantor may incur Acquired Indebtedness, in each case if on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, our Consolidated Fixed Charge Coverage Ratio is greater than 2.0 to 1.0 if such Indebtedness is incurred on or before May 15, 2003 and 2.25 to 1.0 if such Indebtedness is incurred thereafter. Limitation on Restricted Payments We will not, and will not cause or permit any of our Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any distribution, other than dividends or distributions payable in our Qualified Capital Stock, on or in respect of shares of our Capital Stock to holders of such Capital Stock; (2) purchase, redeem or otherwise acquire or retire for value any of our Capital Stock or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock; (3) make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any of our Indebtedness that is subordinate or junior in right of payment to the notes or any Indebtedness of a guarantor that is subordinate or junior in right of payment to such guarantor's guarantee; or (4) make any Investment other than Permitted Investments (each of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a "Restricted Payment"), if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing; or (ii) we are not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant; or (iii) the aggregate amount of Restricted Payments, including such proposed Restricted Payment, made subsequent to the Issue Date (the amount expended for such purposes, if other than in 80 cash, being the fair market value of such property as determined in good faith by our Board of Directors) shall exceed the sum of: (w) 50% of our cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) earned subsequent to the Issue Date and on or prior to the date the Restricted Payment occurs (the "Reference Date") (treating such period as a single accounting period); plus (x) 100% of the aggregate net cash proceeds received by us from any Person other than a subsidiary of ours from the issuance and sale subsequent to the Issue Date and on or prior to the Reference Date of our Qualified Capital Stock; plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by us from a holder of our Capital Stock, excluding, in the case of clauses (iii)(x) and (y), any net cash proceeds from a Public Equity Offering to the extent used to redeem the notes in compliance with the provisions set forth under "Redemption--Optional Redemption Upon Public Equity Offerings," plus (z) without duplication, the sum of: (1) the aggregate amount returned in cash on or with respect to Investments other than Permitted Investments made subsequent to the Issue Date whether through interest payments, principal payments, dividends or other distributions or payments; (2) the net cash proceeds received by us or any of our Restricted Subsidiaries from the disposition of all or any portion of such Investments other than to a subsidiary of ours; and (3) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of that subsidiary; provided, however, that the sum of clauses (1), (2) and (3) above shall not exceed the aggregate amount of all such Investments made subsequent to the Issue Date. However, the provisions set forth in the immediately preceding paragraph do not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of our Qualified Capital Stock or (ii) through the application of net proceeds of a substantially concurrent sale for cash other than to a subsidiary of ours of shares of our Qualified Capital Stock; (3) if no Default or Event of Default shall have occurred and be continuing, the acquisition of any Indebtedness of ours or a guarantor that is subordinate or junior in right of payment to the notes or such guarantor's guarantee, as the case may be, either (i) solely in exchange for shares of our Qualified Capital Stock or (ii) through the application of net proceeds of a substantially concurrent sale for cash other than to a subsidiary of ours of (a) shares of our Qualified Capital Stock or (b) Refinancing Indebtedness; (4) if no Default or Event of Default shall have occurred and be continuing, repurchases by us of our Common Stock (or options or warrants to purchase such Common Stock) from our directors, officers and employees or those of our subsidiaries or their authorized representatives upon the death, disability, retirement or termination of employment of such directors, officers or employees, in an aggregate amount not to exceed $500,000 in any calendar year; 81 (5) if no Default or Event of Default shall have occurred and be continuing, Restricted Payments in an amount not to exceed $5.0 million; and (6) if no Default or Event of Default shall have occurred and be continuing, any transfer or other disposition of our Capital Stock or the Capital Stock of any subsidiary of ours, pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, we apply to Standard & Poor's Rating Group ("S&P") and Moody's Investors Service, Inc. ("Moody's") to have our debt rating and outlook updated and such updated debt rating and outlook is no less favorable to us than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, our Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, we are able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant. In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (iii) of the immediately preceding paragraph, amounts expended pursuant to clauses (1), (2)(ii), 3(ii)(a), (4) and (5) shall be included in such calculation. Limitation on Asset Sales We will not, and will not permit any of our Restricted Subsidiaries to, consummate an Asset Sale unless: (1) we or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by our Board of Directors); (2) at least 75% of the consideration received by us or the applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2), the following will be considered "cash" or "Cash Equivalents": (a) any Senior Debt or Guarantor Senior Debt that is assumed by the transferee of any such assets, to the extent we or the applicable Restricted Subsidiary are released from any further liability with respect thereto; and (b) any securities, notes or other obligations received by us or the applicable Restricted Subsidiary from such transferee that are converted by us or the applicable Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt; and (3) upon the consummation of an Asset Sale, we will apply, or cause the applicable Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either: (a) to prepay any Senior Debt, Guarantor Senior Debt or Indebtedness of a Restricted Subsidiary that is not a guarantor and, in the case of any Senior Debt, Guarantor Senior Debt or such other Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; (b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in our business and the business of our Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto ("Replacement Assets"); or (c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b). 82 On the 366th day after an Asset Sale or such earlier date, if any, as our Board of Directors or the Board of Directors of the applicable Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by us or the applicable Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all holders of the notes on a pro rata basis, the maximum amount of notes that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by us or any of our Restricted Subsidiaries, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. We may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this paragraph). In the event of the transfer of substantially all (but not all) of our and our Restricted Subsidiaries' property and assets as an entirety to a Person in a transaction permitted under "--Merger, Consolidation and Sale of Assets", which transaction does not constitute a Change of Control, the successor corporation will be deemed to have sold our and our Restricted Subsidiaries' properties and assets not so transferred for purposes of this covenant and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of our and our Restricted Subsidiaries' properties and assets deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this covenant. Notwithstanding the first two paragraphs of this covenant, we and our Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent that: (1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and (2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by us or any of our Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this covenant. The provisions of this covenant shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, we apply to S&P and Moody's to have our debt rating and outlook updated and such updated debt rating and outlook is no less favorable to us than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, our Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, we are able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant. Each Net Proceeds Offer will be mailed to the record holders of the notes as shown on the register of holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the trustee, and will comply with the procedures set forth in the indenture. So long as the notes are listed on the Luxembourg Stock 83 Exchange and the rules of that stock exchange so require, we will cause a copy of the notice of the Net Proceeds Offer to be published in a daily newspaper with general circulation in Luxembourg, which we expect to be the Luxemburger Wort. Upon receiving notice of the Net Proceeds Offer, holders of the notes may elect to tender their notes in whole or in part in integral multiples of (Euro)1,000 in exchange for cash. To the extent holders of the notes properly tender notes in an amount exceeding the Net Proceeds Offer Amount, notes of tendering holders will be purchased on a pro rata basis based on amounts tendered. A Net Proceeds Offer must remain open for a period of 20 business days or such longer period as may be required by law. We will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the "Asset Sale" provisions of the indenture, we will comply with the applicable securities laws and regulations and shall not be deemed to have breached our obligations under the "Asset Sale" provisions of the Indenture by virtue thereof. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries We will not, and will not cause or permit any of our Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any of our Restricted Subsidiaries to: (1) pay dividends or make any other distributions on or in respect of its Capital Stock; (2) make loans or advances or to pay any Indebtedness or other obligation owed to us or to any of our other Restricted Subsidiaries; or (3) transfer any of its property or assets to us or to any of our other Restricted Subsidiaries, in each case except for such encumbrances or restrictions existing under or by reason of: (a) applicable law; (b) the notes or the indenture; (c) customary non-assignment provisions of any contract or any lease governing a leasehold interest of any of our Restricted Subsidiaries; (d) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; (e) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; (f) the Credit Agreement or an agreement governing other Senior Debt or Guarantor Senior Debt permitted to be incurred under the Indenture; provided that, with respect to any agreement governing such other Senior Debt or Guarantor Senior Debt, the provisions relating to such encumbrance or restriction are no less favorable to us in any material respect as determined by our Board of Directors in its reasonable and good faith judgment than the provisions contained in the Credit Agreement as in effect on the Issue Date; (g) restrictions on the transfer of assets subject to any Lien permitted under the indenture imposed by the holder of such Lien; (h) restrictions imposed by any agreement to sell assets or Capital Stock permitted under the indenture to any Person pending the closing of such sale; (i) restrictions imposed by agreements governing Indebtedness of a Foreign Restricted Subsidiary incurred pursuant to clauses (14) and (19) of the definition of "Permitted Indebtedness"; 84 (j) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (k) any Purchase Money Note or other Indebtedness or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity; (l) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business; and (m) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (b) and (d) through (l) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such agreements are no less favorable to us in any material respect as determined by our Board of Directors in its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (b) and (d) through (l) above. Limitation on Preferred Stock of Restricted Subsidiaries We will not permit any of our Restricted Subsidiaries that are not guarantors to issue any Preferred Stock (other than to us or to any of our Wholly Owned Restricted Subsidiaries) or permit any Person (other than us or any of our Wholly Owned Restricted Subsidiaries) to own any Preferred Stock of any of our Restricted Subsidiaries that is not a guarantor. Limitation on Liens We will not, and will not cause or permit any of our Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any of our Restricted Subsidiaries' property or assets whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to the notes or the guarantees, the notes or the guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the notes or guarantees, as the case may be, are equally and ratably secured, except for: (a) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date; (b) Liens securing Senior Debt and Liens securing Guarantor Senior Debt; (c) Liens securing the notes and the guarantees; (d) Liens of ours or a Wholly Owned Restricted Subsidiary of ours on assets of any of our Restricted Subsidiaries and Liens on our assets in favor of a Wholly Owned Restricted Subsidiary that is a guarantor; (e) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness that has been secured by a Lien permitted under the indenture and that has been incurred without violation of the indenture; provided, however, that such Liens: (i) are no less favorable to the holders of the notes and are not more favorable to the lienholders, in each case in any material respect, with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any categories of our or any of our Restricted Subsidiaries' property or assets not securing the Indebtedness so Refinanced; and (f) Permitted Liens. 85 Prohibition on Incurrence of Senior Subordinated Debt We will not, and will not permit any Restricted Subsidiary that is a guarantor to, incur or suffer to exist Indebtedness that is senior in right of payment to the notes or such guarantor's guarantee, as the case may be, and subordinate in right of payment to any of our or such guarantor's other Indebtedness, as the case may be. Merger, Consolidation and Sale of Assets We will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any of our Restricted Subsidiaries to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of our assets (determined on a consolidated basis for us and our Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless: (1) either: (a) we will be the surviving or continuing corporation; or (b) the Person (if other than us) formed by such consolidation or into which we are merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition our and our Restricted Subsidiaries' properties and assets substantially as an entirety (the "Surviving Entity"): (x) will be a corporation organized and validly existing under the laws of any country that is a member of the European Union as currently constituted or the United States or any State thereof or the District of Columbia; and (y) will expressly assume, by supplemental indenture (in form and substance satisfactory to the trustee), executed and delivered to the trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the notes and the performance of every covenant of the notes, the indenture and the registration rights agreement on our part to be performed or observed; (2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), we or such Surviving Entity, as the case may be, (a) will have a Consolidated Net Worth equal to or greater than our Consolidated Net Worth immediately prior to such transaction and (b) will be able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the "--Limitation on Incurrence of Additional Indebtedness" covenant; (3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (4) we or the Surviving Entity shall have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of the indenture and that all conditions precedent in the indenture relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more of our Restricted Subsidiaries the Capital Stock of which constitutes all or substantially all of our properties and assets, shall be deemed to be the transfer of all or substantially all of our properties and assets. 86 The indenture provides that upon any consolidation, combination or merger or any transfer of all or substantially all of our assets in accordance with the foregoing, in which we are not the continuing corporation, the successor Person formed by such consolidation or into which we are merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for, and may exercise all of our rights and powers under the indenture and the notes with the same effect as if such surviving entity had been named as such. Each guarantor (other than any guarantor whose guarantee is to be released in accordance with the terms of its guarantee and the indenture in connection with any transaction complying with the provisions of the "Limitation on Asset Sales" covenant) will not, and we will not cause or permit any guarantor to, consolidate with or merge with or into any Person other than us or any other guarantor unless: (1) the entity formed by or surviving any such consolidation or merger (if other than the guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (2) such entity assumes by supplemental indenture all of the obligations of the guarantor on its guarantee; (3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (4) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, we could satisfy the provisions of clause (2) of the first paragraph of this covenant. Any merger or consolidation of a guarantor with and into us (in which we are the surviving entity) or another guarantor that is our Wholly Owned Restricted Subsidiary need only comply with clause (4) of the first paragraph of this covenant. The provisions of this covenant shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, our debt ratings and outlook by S&P and Moody's are no less favorable to us than prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, our Consolidated Fixed Charge Coverage Ratio is at least equal to our Consolidated Fixed Charge Coverage Ratio prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, we are able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant. Limitations on Transactions with Affiliates (a) We will not, and will not permit any of our Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of our Affiliates (each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not our Affiliate or an Affiliate of such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5.0 million shall be approved by our Board of Directors or the Board of Directors of such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If we or any of our Restricted Subsidiaries enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a 87 common plan) that involves an aggregate fair market value of more than $10.0 million, we or such Restricted Subsidiary, as the case may be, shall, prior to the consummation of the Affiliate Transaction, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to us or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the trustee. (b) The restrictions set forth in the first paragraph of this covenant shall not apply to: (1) reasonable fees and compensation paid to and indemnity provided on behalf of, our or any of our Restricted Subsidiaries' officers, directors, employees or consultants as determined in good faith by our Board of Directors or senior management; (2) transactions exclusively between or among us and any of our Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries; provided such transactions are not otherwise prohibited by the indenture; (3) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the holders of the notes in any material respect than the original agreement as in effect on the Issue Date; (4) Restricted Payments or Permitted Investments permitted by the indenture; (5) transactions between us or any of our subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by the indenture; and (6) transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, we apply to S&P and Moody's to have our debt rating and outlook updated and such updated debt rating and outlook is be no less favorable to us than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, our Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, we are able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant. Additional Subsidiary Guarantees If any existing or future Domestic Restricted Subsidiary shall, after the Issue Date, guarantee any of our or a gurantor's Indebtedness, then we will cause such Domestic Restricted Subsidiary to: (1) execute and deliver to the trustee a supplemental indenture in form reasonably satisfactory to the trustee pursuant to which such Domestic Restricted Subsidiary shall unconditionally guarantee all of our obligations under the notes and the indenture on the terms set forth in the indenture; and (2) deliver to the trustee an opinion of counsel that such supplemental indenture has been duly authorized, executed and delivered by such Domestic Restricted Subsidiary and constitutes a legal, valid, binding and enforceable obligation of such Domestic Restricted Subsidiary. Thereafter, such Domestic Restricted Subsidiary will be a guarantor for all purposes of the indenture until such Domestic Subsidiary is released from its guarantee as provided in the indenture. 88 Conduct of Business We will not, and will not permit any of our Restricted Subsidiaries to, engage in any businesses that are not the same, similar or reasonably related to the businesses in which we and our Restricted Subsidiaries are engaged on the Issue Date. Reports to Holders Whether or not required by the rules and regulations of the SEC, so long as any notes are outstanding, we will furnish the holders of notes: (1) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if we were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the financial condition and results of operations of us and our consolidated subsidiaries (showing in reasonable detail, either on the face of the financial statements or in the footnotes thereto and in Management's Discussion and Analysis of Financial Condition and Results of Operations, the financial condition and results of operations of us and our Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of ours, if any) and, with respect to the annual information only, a report thereon by our certified independent accounts; and (2) all current reports that would be required to be filed with the SEC on Form 8-K if we were required to file such reports, in each case within the time periods specified in the SEC's rules and regulations. In addition, following the consummation of the exchange offer contemplated by the registration rights agreement, whether or not required by the rules and regulations of the SEC, we will file a copy of all such information and reports with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. In addition, we have agreed that, for so long as any notes remain outstanding, we will furnish to the holders of the notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. For so long as the notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, reports filed with the SEC or required to be provided to the holders of the notes pursuant to the indenture may be obtained, free of charge, at the office of the Luxembourg paying agent. Events of Default The following events are defined in the Indenture as "Events of Default": (1) the failure to pay interest on any notes when the same becomes due and payable and the default continues for a period of 30 days, whether or not such payment shall be prohibited by the subordination provisions of the indenture; (2) the failure to pay the principal on any notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) on the date specified for such payment in the applicable offer to purchase, whether or not such payment shall be prohibited by the subordination provisions of the indenture; (3) a default in the observance or performance of any other covenant or agreement contained in the Indenture which default continues for a period of 45 days after we receive written notice specifying the default (and demanding that such default be remedied) from the trustee or the holders of at least 25% of the outstanding principal amount of the notes (except in the case of a default with respect to the "Merger, 89 Consolidation and Sale of Assets" covenant, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); (4) the failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of ours or any Restricted Subsidiary of ours, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days of receipt by us or such Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been accelerated (in each case with respect to which the 20-day period described above has passed), aggregates $10.0 million or more at any time; (5) one or more judgments in an aggregate amount in excess of $10.0 million shall have been rendered against us or any of our Significant Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable; (6) some events of bankruptcy affecting us or any of our Significant Subsidiaries; or (7) any guarantee of a Significant Subsidiary ceases to be in full force and effect or any guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any guarantee of a Significant Subsidiary is found to be invalid or any guarantor that is a Significant Subsidiaries denies its liability under its guarantee (other than by reason of release of a guarantor in accordance with the terms of the Indenture). If an Event of Default (other than an Event of Default specified in clause (6) above with respect to us) shall occur and be continuing, the trustee or the holders of at least 25% in principal amount of outstanding notes may declare the principal of and accrued interest on all the notes to be due and payable by notice in writing to us, the representative under the Credit Agreement and the trustee specifying the applicable Event of Default and that it is a "notice of acceleration" (the "Acceleration Notice"), and the same: (1) shall become immediately due and payable; or (2) if there are any amounts outstanding under the Credit Agreement, shall become immediately due and payable upon the first to occur of an acceleration under the Credit Agreement and five business days after receipt by us and the Representative under the Credit Agreement of such Acceleration Notice but only if such Event of Default is then continuing. If an Event of Default specified in clause (6) above with respect to us occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of the notes. The indenture provides that, at any time after a declaration of acceleration with respect to the notes as described in the preceding paragraph, the holders of a majority in principal amount of the notes may rescind and cancel such declaration and its consequences: (1) if the rescission would not conflict with any judgment or decree; (2) if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration; (3) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (4) if we have paid the trustee its reasonable compensation and reimbursed the trustee for its expenses, disbursements and advances; and (5) in the event of the cure or waiver of an Event of Default of the type described in clause (6) of the description above of Events of Default, the trustee shall have received an officers' certificate and an 90 opinion of counsel that such Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. The holders of a majority in principal amount of the notes may waive any existing Default or Event of Default under the Indenture, and its consequences, except a default in the payment of the principal of or interest on any notes. Holders of the notes may not enforce the indenture or the notes except as provided in the indenture and under the Trust Indenture Act. Subject to the provisions of the indenture relating to the duties of the trustee, the trustee is under no obligation to exercise any of its rights or powers under the indenture at the request, order or direction of any of the holders of the notes, unless such holders have offered to the trustee reasonable indemnity. Subject to all provisions of the indenture and applicable law, the holders of a majority in aggregate principal amount of the then outstanding notes have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee. Under the indenture, we are required to provide an officers' certificate to the trustee promptly upon any such officer obtaining knowledge of any Default or Event of Default (provided that such officers shall provide such certification at least annually whether or not they know of any Default or Event of Default) that has occurred and, if applicable, describe such Default or Event of Default and the status thereof. Legal Defeasance and Covenant Defeasance We may, at our option and at any time, elect to have our Obligations and the Obligations of the guarantors discharged with respect to the outstanding notes ("Legal Defeasance"). Such Legal Defeasance means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding notes, except for: (1) the rights of holders of the notes to receive payments in respect of the principal of, premium, if any, and interest on the notes when such payments are due; (2) our Obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payments; (3) the rights, powers, trust, duties and immunities of the trustee and our Obligations in connection therewith; and (4) the Legal Defeasance provisions of the indenture. In addition, we may, at our option and at any time, elect to have our obligations released with respect to certain covenants that are described in the indenture ("Covenant Defeasance") and thereafter any omission to comply with such Obligations shall not constitute a Default or Event of Default with respect to the notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, reorganization and insolvency events) described under "Events of Default" will no longer constitute an Event of Default with respect to the notes. In order to exercise either Legal Defeasance or Covenant Defeasance: (1) we must irrevocably deposit with the trustee, in trust, for the benefit of the holders of the notes cash in euros, non-callable government obligations of any member nation of the European Union whose official currency is the euro, rated AAA or better by S&P and Aaa by Moody's, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the notes on the stated date for payment thereof or on the applicable redemption date, as the case may be; 91 (2) in the case of Legal Defeasance, we must have delivered to the trustee an opinion of counsel in the United States reasonably acceptable to the trustee confirming that: (a) we have received from, or there has been published by, the Internal Revenue Service a ruling; or (b) since the date of the indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the holders of the notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of Covenant Defeasance, we must have delivered to the trustee an opinion of counsel in the United States reasonably acceptable to the trustee confirming that the holders of the notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing); (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Indenture (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) or any other material agreement or instrument (including without limitation the Credit Agreement) to which we or any of our subsidiaries are a party or by which we or any of our subsidiaries are bound; (6) we must have delivered to the trustee an officers' certificate stating that the deposit was not made by us with the intent of preferring the holders of the notes over any of our other creditors or with the intent of defeating, hindering, delaying or defrauding any of our other creditors or creditors of others; (7) we must have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; (8) we must have delivered to the trustee an opinion of counsel to the effect that: (a) the trust funds will not be subject to any rights of holders of Senior Debt, including, without limitation, those arising under the indenture; and (b) assuming no intervening bankruptcy of us between the date of deposit and the 124th day following the date of deposit and that no holder of the notes is our insider, after the 124th day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; and (9) certain other customary conditions precedent are satisfied. Notwithstanding the foregoing, the opinion of counsel required by clause (2) above with respect to a Legal Defeasance need not be delivered if all notes not theretofore delivered to the trustee for cancellation (1) have become due and payable or (2) will become due and payable on the maturity date or a redemption date within one year under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in our name and at our expense. 92 Satisfaction and Discharge The indenture will be discharged and will cease to be of further effect, except as to surviving rights or registration of transfer or exchange of the notes, as expressly provided for in the indenture, as to all outstanding notes when: (1) either: (a) all the notes theretofore authenticated and delivered (except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by us and thereafter repaid to us or discharged from such trust) have been delivered to the trustee for cancellation; or (b) all notes not theretofore delivered to the trustee for cancellation have become due and payable, and we have irrevocably deposited or caused to be deposited with the trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the notes not theretofore delivered to the trustee for cancellation, for principal of, premium, if any, and interest on the notes to the date of deposit together with irrevocable instructions from us directing the trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (2) we have paid all other sums payable under the indenture by us; and (3) we have delivered to the trustee an officers' certificate and an opinion of counsel stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with. Modification of the Indenture From time to time, we, the guarantors and the trustee, without the consent of the holders of the notes, may amend the indenture for certain specified purposes, including curing ambiguities, defects or inconsistencies, so long as such change does not, in the opinion of the trustee, adversely affect the rights of any of the holders of the notes in any material respect. In formulating its opinion on such matters, the trustee will be entitled to rely on such evidence as it deems appropriate, including, without limitation, solely on an opinion of counsel. Other modifications and amendments of the indenture may be made with the consent of the holders of a majority in principal amount of the then outstanding notes issued under the indenture, except that, without the consent of each holder affected thereby, no amendment may: (1) reduce the amount of notes whose holders must consent to an amendment; (2) reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on any notes; (3) reduce the principal of or change or have the effect of changing the fixed maturity of any notes, or change the date on which any notes may be subject to redemption or reduce the redemption price therefor; (4) make any notes payable in money other than that stated in the notes; (5) make any change in provisions of the indenture protecting the right of each holder of the notes to receive payment of principal of and interest on such note on or after the due date thereof or to bring suit to enforce such payment, or permitting holders of a majority in principal amount of notes to waive Defaults or Events of Default; (6) after our obligation to purchase notes arises thereunder, amend, change or modify in any material respect our obligation to make and consummate a Change of Control Offer in the event of a Change of Control or make and consummate a Net Proceeds Offer with respect to any Asset Sale that has been consummated or, after such Change of Control has occurred or such Asset Sale has been consummated, modify any of the provisions or definitions with respect thereto; 93 (7) modify or change any provision of the indenture or the related definitions affecting the subordination or ranking of the notes or any guarantee in a manner which adversely affects the holders of the notes; or (8) release any guarantor that is a Significant Subsidiary from any of its obligations under its guarantee or the indenture otherwise than in accordance with the terms of the indenture. Governing Law The indenture provides that it, the notes and the guarantees will be governed by, and construed in accordance with, the laws of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. The Trustee The indenture provides that, except during the continuance of an Event of Default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an Event of Default, the trustee will exercise such rights and powers vested in it by the indenture, and use the same degree of care and skill in its exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. The indenture and the provisions of the Trust Indenture Act contain some limitations on the rights of the trustee, should it become a creditor of ours, to obtain payments of claims in certain cases or to realize on certain property received in respect of any such claim as security or otherwise. Subject to the Trust Indenture Act, the trustee will be permitted to engage in other transactions; provided that if the trustee acquires any conflicting interest as described in the Trust Indenture Act, it must eliminate such conflict or resign. Definitions Set forth below is a summary of some of the defined terms used in the indenture. Reference is made to the indenture for the full definition of all such terms, as well as any other terms used in this section for which no definition is provided. "Acquired Indebtedness" means Indebtedness of a Person or any of its subsidiaries existing at the time such Person becomes a Restricted Subsidiary of ours or at the time it merges or consolidates with or into us or any of our Restricted Subsidiaries or that is assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of ours or such acquisition, merger or consolidation. "Affiliate" means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term "control" 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 securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative of the foregoing. "Asset Acquisition" means (1) an Investment by us or any Restricted Subsidiary of ours in any other Person pursuant to which such Person shall become a Restricted Subsidiary of ours or any Restricted Subsidiary of ours, or shall be merged with or into us or any Restricted Subsidiary of ours, or (2) the acquisition by us or any Restricted Subsidiary of ours of the assets of any Person (other than a Restricted Subsidiary of ours) that constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business. 94 "Asset Sale" means any direct or indirect sale, issuance, conveyance, transfer, lease, assignment or other transfer for value by us or any of our Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than us or a Wholly Owned Restricted Subsidiary of ours of: (1) any Capital Stock of any Restricted Subsidiary of ours; or (2) any other property or assets of ours or any Restricted Subsidiary of ours other than in the ordinary course of business; provided, however, that Asset Sales or other dispositions shall not include: (a) a transaction or series of related transactions for which we or our Restricted Subsidiaries receive aggregate consideration of less than $2.0 million; (b) the sale, lease, conveyance, disposition or other transfer of all or substantially all of our assets as permitted under "Certain Covenants-- Merger, Consolidation and Sale of Assets"; (c) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; (d) sales of accounts receivable and related assets, including contract rights, of the type specified in the definition of "Qualified Securitization Transaction" to a Securitization Entity for the fair market value thereof; (e) sales of accounts receivable and related assets, including contract rights, to the Factor pursuant to the Factoring Agreement; (f) disposals or replacements of obsolete equipment in the ordinary course of business; (g) sales pursuant to the GE Agreement; (h) any Restricted Payment permitted by the "Limitation on Restricted Payments" covenant or that constitutes a Permitted Investment; and (i) any transfer of up to 6.4% of the Capital Stock of Potain S.A. ("Potain") to comply with the judgment or order of any court or to settle any judicial proceeding in whole or in part. "Board of Directors" means, as to any Person, the board of directors of such Person or any duly authorized committee thereof. "Board Resolution" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the trustee. "Borrowing Base Amount" means, as of any date, an amount equal to the sum of: (1) 80% of the aggregate book value of all accounts receivable of ours and our Restricted Subsidiaries; and (2) 50% of the aggregate book value of all inventory owned by us and our Restricted Subsidiaries, all calculated on a consolidated basis and in accordance with GAAP. "Capitalized Lease Obligation" means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP. "Capital Stock" means: (1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; and 95 (2) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person. "Cash Equivalents" means: (1) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof; (2) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody's; (3) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody's; (4) certificates of deposit or bankers' acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250.0 million; (5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (4) above; (6) investments in money market funds that invest substantially all their assets in securities of the types described in clauses (1) through (5) above; and (7) Foreign Cash Equivalents. "Change of Control" means the occurrence of one or more of the following events: (1) any sale, lease, exchange or other transfer, in one transaction or a series of related transactions, of all or substantially all of our assets to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a "Group"), together with any Affiliates thereof, whether or not otherwise in compliance with the provisions of the indenture; (2) the approval by the holders of our Capital Stock of any plan or proposal for the liquidation or dissolution of our company, whether or not otherwise in compliance with the provisions of the Indenture; (3) any Person or Group (other than entities formed for the purpose of holding, directly or indirectly, our Capital Stock) shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by our issued and outstanding Capital Stock; or (4) the replacement of a majority of our Board of Directors over a two-year period from the directors who constituted our Board of Directors at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of our Board of Directors then still in office who either were members of such Board of Directors at the beginning of such period or whose election as a member of such Board of Directors was previously so approved. "Common Stock" of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person's common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common stock. 96 "Consolidated EBITDA" means, with respect to any Person, for any period, the sum (without duplication) of: (1) Consolidated Net Income; and (2) to the extent Consolidated Net Income has been reduced thereby: (a) all income taxes of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period (other than income taxes attributable to extraordinary, unusual or nonrecurring gains or losses (other than in connection with an Inversion Transaction) or taxes attributable to sales or dispositions outside the ordinary course of business); (b) Consolidated Interest Expense; and (c) Consolidated Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period, all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP. "Consolidated Fixed Charge Coverage Ratio" means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters (the "Four Quarter Period") ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements are available (the "Transaction Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be calculated after giving effect on a pro forma basis for the period of such calculation to: (1) the incurrence or repayment of any Indebtedness of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and (2) any asset sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X under the Exchange Act) attributable to the assets that are the subject of the Asset Acquisition or asset sale during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such asset sale or Asset Acquisition (including the incurrence or assumption of any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such other Indebtedness that was so guaranteed. Furthermore, in calculating "Consolidated Fixed Charges" for purposes of determining the denominator (but not the numerator) of this "Consolidated Fixed Charge Coverage Ratio": (1) interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date; and 97 (2) notwithstanding clause (1) of this paragraph, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements. "Consolidated Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of: (1) Consolidated Interest Expense; plus (2) the product of (x) the amount of all dividend payments on any series of Preferred Stock of such Person and, to the extent permitted under the Indenture, its Restricted Subsidiaries (other than dividends paid in Qualified Capital Stock) paid, accrued or scheduled to be paid or accrued during such period times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal, state and local income tax rate of such Person, expressed as a decimal. "Consolidated Interest Expense" means, with respect to any Person for any period, the sum of, without duplication: (1) the aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including without limitation: (a) any amortization of debt discount and amortization or write-off of deferred financing costs; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest; and (d) the interest portion of any deferred payment obligation; and (2) the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP. "Consolidated Net Income" means, with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom: (1) after-tax gains from Asset Sales (without regard to the $2.0 million limitation set forth in the definition thereof) or abandonments or reserves relating thereto; (2) after-tax items classified as extraordinary or nonrecurring gains or losses; (3) the net income of any Person acquired in a "pooling of interests" transaction accrued prior to the date it becomes a Restricted Subsidiary of the referent Person or is merged or consolidated with the referent Person or any Restricted Subsidiary of the referent Person; (4) the net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is restricted by contract, operation of law or otherwise; (5) the net income of any Person, other than a Restricted Subsidiary of ours, except to the extent of cash dividends or distributions paid to us or to a Restricted Subsidiary of ours by such Person; (6) income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified as discontinued); (7) in the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person's assets, any earnings of the successor corporation prior to such consolidation, merger or transfer of assets; (8) non-cash charges relating to compensation expense in connection with benefits provided under employee stock option plans, restricted stock option plans and other employee stock purchase or stock incentive plans; and (9) income or loss attributable solely to fluctuations in currency values and related tax effects. 98 "Consolidated Net Worth" of any Person means the consolidated stockholders' equity of such Person, determined on a consolidated basis in accordance with GAAP, less (without duplication) amounts attributable to Disqualified Capital Stock of such Person. "Consolidated Non-cash Charges" means, with respect to any Person, for any period, the aggregate depreciation, amortization and other non-cash expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges that require an accrual of or a reserve for cash charges for any future period). "Credit Agreement" means the Credit Agreement to be dated as of May 9, 2001, among us, the lenders party thereto in their capacities as lenders thereunder and Bankers Trust Company, as agent, together with the related documents thereto (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of ours as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders. "Currency Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect us or any Restricted Subsidiary of ours against fluctuations in currency values. "Default" means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default. "Designated Senior Debt" means (1) Indebtedness under or in respect of the Credit Agreement and (2) any other Indebtedness constituting Senior Debt that, at the time of determination, has an aggregate principal amount of at least $25.0 million and is specifically designated in the instrument evidencing such Senior Debt as "Designated Senior Debt" by us. "Disqualified Capital Stock" means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control) on or prior to the final maturity date of the notes. "Domestic Restricted Subsidiary" means any Restricted Subsidiary of ours incorporated or otherwise organized or existing under the laws of the United States, any state thereof or the District of Columbia. "Factor" means, collectively, one or more purchasers of receivables under the Factoring Agreement. "Factoring Agreement" means one or more receivables purchase agreements or similar agreements entered into by us or any of our Restricted Subsidiaries with the Factor, as the same may be amended, modified, supplemented and/or replaced from time to time so long as any such replacement agreement is on terms no less favorable to us or any of our Restricted Subsidiaries in any material respect than those terms set forth in the Factoring Agreement as in effect on the Issue Date. "fair market value" means, with respect to any asset or property, the price which could be negotiated in an arm's-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined by our Board of Directors acting reasonably and in good faith and shall be evidenced by a Board Resolution of our Board of Directors delivered to the Trustee. 99 "Foreign Cash Equivalents" means certificates of deposit or bankers acceptances of any bank organized under the laws of Canada or any country that is a member of the European Union, whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or the equivalent thereof, in each case with maturities of not more than one year from the date of acquisition. "Foreign Restricted Subsidiary" means any Restricted Subsidiary of ours that is not a Domestic Restricted Subsidiary. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect as of the Issue Date. "GE Agreement" means the agreement, dated March 10, 1998, between us and General Electric Capital Corporation, as Lessor, as the same may be amended, modified, supplemented and/or replaced from time to time, providing for the sale of equipment by us to the Lessor and subsequent leaseback by the Lessor to us or to some of our subsidiaries in an aggregate outstanding principal amount not to exceed $20.0 million at any time. "guarantor" means: (1) each of Manitowoc Crane Companies, Inc.; Manitowoc Marine Group, LLC; Manitowoc Foodservice Companies, Inc.; North Central Crane & Excavator Sales Corp.; Environmental Rehab, Inc.; Manitowoc Crane & Shovel Sales Corp.; Manitowoc Western Company, Inc.; Manitowoc Re-Manufacturing, Inc.; Manitowoc Cranes, Inc.; Manitowoc Boom Trucks, Inc.; West-Manitowoc, Inc.; Femco Machine Company, Inc.; Manitowoc CP, Inc.; Manitowoc MEC, Inc.; KMT Refrigeration, Inc.; Harford Duracool, LLC; Diversified Refrigeration, Inc.; SerVend International, Inc.; SerVend Sales Corp.; Manitowoc Beverage Systems, Inc.; Manitowoc Ice, Inc.; Manitowoc Equipment Works, Inc.; Manitowoc FP, Inc.; KMT Sales Corp.; Multiplex Company, Inc.; Marinette Marine Corporation; and Potain Corporation and (2) each of our Domestic Restricted Subsidiaries that in the future executes a supplemental indenture in which such Domestic Restricted Subsidiary agrees to be bound by the terms of the indenture as a guarantor; provided that any Person constituting a guarantor as described above shall cease to constitute a guarantor when its respective guarantee is released in accordance with the terms of the indenture. "Guarantor Senior Debt" means, with respect to any guarantor, the principal of, premium, if any, and interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on any Indebtedness of a guarantor, whether outstanding on the Issue Date or thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to the guarantee of such guarantor. "Guarantor Senior Debt" shall also include the principal of, premium, if any, interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on, and all other amounts owing in respect of: (x) all monetary obligations (including guarantees) of every nature of such guarantor under the Credit Agreement, including obligations (including guarantees) to pay principal , premium and interest, reimbursement obligations under letters of credit, fees, expenses and indemnities; (y) all Interest Swap Obligations and guarantees thereof; and (z) all obligations under Currency Agreements and guarantees thereof; in each case whether outstanding on the Issue Date or thereafter incurred. 100 Notwithstanding the foregoing, "Guarantor Senior Debt" shall not include: (1) any Indebtedness of such guarantor to us or to a subsidiary of ours; (2) Indebtedness to, or guaranteed on behalf of, any director, officer or employee of ours or any subsidiary of ours (including, without limitation, amounts owed for compensation); (3) Indebtedness owed to trade creditors and other amounts incurred (but not under the Credit Agreement) in connection with obtaining goods, materials or services; (4) Indebtedness represented by Disqualified Capital Stock; (5) any liability for federal, state, local or other taxes owed or owing by such guarantor; (6) that portion of any Indebtedness incurred in violation of the indenture provisions set forth under "Limitation on Incurrence of Additional Indebtedness," but, as to any such obligation, no such violation shall be deemed to exist for purposes of this clause (6) if the holder(s) of such obligation or their representative and the trustee must have received an officers' certificate of ours to the effect that the incurrence of such Indebtedness does not (or, in the case of revolving credit indebtedness, that the incurrence of the entire committed amount thereof at the date on which the initial borrowing thereunder is made would not) violate such provisions of the indenture; (7) Indebtedness that, when incurred and without respect to any election under Section 1111(b) of Title 11, United States Bankruptcy Code, is without recourse to such guarantor; and (8) any Indebtedness that is, by its express terms, subordinated in right of payment to any other Indebtedness of such guarantor. "Indebtedness" means with respect to any Person, without duplication: (1) all Obligations of such Person for borrowed money; (2) all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (3) all Capitalized Lease Obligations of such Person; (4) all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business); (5) all Obligations for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction; (6) guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below; (7) all Obligations of any other Person of the type referred to in clauses (1) through (6) above that are secured by any Lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured; (8) all Obligations under Currency Agreements and interest swap agreements of such Person; and (9) all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. For purposes hereof, the "maximum fixed repurchase price" of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Capital Stock. 101 "Independent Financial Advisor" means a firm: (1) that does not, and whose directors, officers and employees or Affiliates do not, have a direct or indirect financial interest in us; and (2) that, in the judgment of our Board of Directors, is otherwise independent and qualified to perform the task for which it is to be engaged. "Interest Swap Obligations" means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements. "Inversion Transaction" means a transaction or series of related transactions undertaken to facilitate the global movement of cash assets among affiliated group members in a tax efficient manner pursuant to which (i) a U.S. parent company ("Former Parent") becomes a wholly owned subsidiary of a newly organized offshore/foreign entity or entities (in either case, or together, a "New Parent"); (ii) all of the issued and outstanding capital stock of Former Parent is converted into an equivalent number of shares of capital stock of a New Parent; (iii) the foreign subsidiaries of Former Parent would then be owned by New Parent, either directly or through a foreign subsidiary of New Parent, and would be sister companies of Former Parent, and the domestic subsidiaries would be held through Former Parent as a U.S. subsidiary of New Parent. "Investment" means, with respect to any Person, any direct or indirect loan or other extension of credit (including, without limitation, a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any Person. "Investment" shall exclude extensions of trade credit by us and our Restricted Subsidiaries on commercially reasonable terms in accordance with normal trade practices of ours or such Restricted Subsidiary, as the case may be, and the acquisition of up to 6.4% of the Capital Stock of Potain. If we or any Restricted Subsidiary of ours sells or otherwise disposes of any Common Stock of any direct or indirect Wholly Owned Restricted Subsidiary of ours such that, after giving effect to any such sale or disposition, we no longer own, directly or indirectly 100% of the outstanding Common Stock of such Restricted Subsidiary, we (other than, in the case of Potain, up to 6.4% of the Capital Stock of Potain) shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Common Stock of such Restricted Subsidiary not sold or disposed of. "Issue Date" means May 9, 2001. "Lien" means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest). "Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by the Company or any of its Restricted Subsidiaries from such Asset Sale net of: (1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions); (2) taxes paid or payable after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements; (3) repayment of Indebtedness that is secured by the property or assets that are the subject of such Asset Sale; and 102 (4) appropriate amounts to be provided by us or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by us or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale. "Obligations" means all obligations for principal, premium, interest, penalties, fees, indemnification, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Permitted Indebtedness" means, without duplication, each of the following: (1) Indebtedness under the notes issued in the Offering in an aggregate principal amount not to exceed (Euro)175.0 million and the related guarantees; (2) Indebtedness incurred pursuant to the Credit Agreement in an aggregate principal amount at any time outstanding not to exceed the greater of (a) $475.0 million (i) less the amount of all mandatory principal payments actually made by us or any Restricted Subsidiary with the Net Cash Proceeds from Asset Sales in respect of the term loans thereunder, excluding any such payments to the extent refinanced at the time of payment under a replaced Credit Agreement; and (ii) reduced by any mandatory permanent repayments of revolving loans made by us thereunder, which are accompanied by a corresponding permanent commitment reduction, with the Net Cash Proceeds from Asset Sales, excluding any such payments and commitment reductions to the extent refinanced at the time of payment under a replaced Credit Agreement; and (b) the Borrowing Base Amount plus $30.0 million; (3) other Indebtedness of ours and our Restricted Subsidiaries outstanding on the Issue Date reduced by the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereon; (4) Interest Swap Obligations of ours or any of our Restricted Subsidiaries covering Indebtedness of ours or such Restricted Subsidiary; provided, however, that such Interest Swap Obligations are entered into to protect us and our Restricted Subsidiaries from fluctuations in interest rates on Indebtedness incurred without violation of with the Indenture to the extent the notional principal amount of such Interest Swap Obligation does not exceed, at the time of the incurrence thereof, the principal amount of the Indebtedness to which such Interest Swap Obligation relates; (5) Indebtedness under Currency Agreements; provided that in the case of Currency Agreements which relate to Indebtedness, such Currency Agreements do not increase the Indebtedness of us and our Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder; (6) Indebtedness of a Restricted Subsidiary of ours to us, to a guarantor or to another Wholly Owned Restricted Subsidiary of ours for so long as such Indebtedness is held by us, such guarantor, such Wholly Owned Restricted Subsidiary or the holders of a Lien permitted under the indenture, in each case subject to no Lien held by a Person other than us, a guarantor, such Wholly Owned Restricted Subsidiary or holders of a Lien permitted under the indenture; provided that if as of any date any Person other than us, a guarantor, a Wholly Owned Restricted Subsidiary of ours or the holders of a Lien permitted under the indenture owns or holds any such Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by the issuer of such Indebtedness pursuant to this clause (6); (7) Indebtedness of ours to a Wholly Owned Restricted Subsidiary of ours for so long as such Indebtedness is held by a Wholly Owned Restricted Subsidiary of ours or the holders of a Lien permitted under the 103 indenture, in each case subject to no Lien other than a Lien permitted under the indenture; provided that (a) any Indebtedness of ours to any Wholly Owned Restricted Subsidiary of ours that is not guarantor is unsecured and subordinated, pursuant to a written agreement, to our obligations under the indenture and the notes and (b) if as of any date any Person other than a Wholly Owned Restricted Subsidiary of ours or the holders of a Lien permitted under the indenture owns or holds any such Indebtedness or any Person holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by us pursuant to this clause (7); (8) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within four business days of incurrence; (9) Indebtedness of ours or any of our Restricted Subsidiaries represented by letters of credit for the account of us or such Restricted Subsidiary, as the case may be, in order to provide security for workers' compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business; (10) Indebtedness represented by guarantees by us or our Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture; provided that, in the case of a guarantee by a Restricted Subsidiary, such Restricted Subsidiary complies with the "Additional Subsidiaries Guarantees" covenant to the extent applicable; (11) Indebtedness of ours or any of our Restricted Subsidiaries in respect of bid, payment and performance bonds, bankers' acceptances, workers' compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations, and bank overdrafts (and letters of credit in respect thereof) in the ordinary course of business; (12) Indebtedness of ours or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets; (13) Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness of ours and our Restricted Subsidiaries incurred in the ordinary course of business not to exceed $15.0 million at any one time outstanding; (14) Indebtedness of our Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $20.0 million under lines of credit to any such Foreign Restricted Subsidiary from Persons other than us or any of our subsidiaries, the proceeds of which Indebtedness are used for such Foreign Restricted Subsidiary's working capital and other general corporate purposes; (15) Indebtedness that may be deemed to exist pursuant to the Factoring Agreement and Indebtedness by a Securitization Entity in a Qualified Securitization Transaction that is not recourse (except for Standard Securitization Undertakings) to us or any of our Restricted Subsidiaries; provided that any amounts incurred under this clause (15) in excess of $50.0 million will reduce the amounts available for borrowing under clause (2) above in an equal amount; (16) Indebtedness of ours evidenced by commercial paper issued by us; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to clause (2) of this definition and this clause (16) does not exceed the maximum amount of Indebtedness permitted under clause (2) of this definition; (17) Refinancing Indebtedness; (18) Indebtedness of ours or any of our Restricted Subsidiaries consisting of obligations to repurchase equipment incurred in the ordinary course of business, to the extent such obligations do not exceed the fair market value of such equipment; and (19) additional Indebtedness of ours and our Restricted Subsidiaries in an aggregate principal amount not to exceed $30.0 million at any one time outstanding (which amount may, but need not, be incurred in whole or in part under the Credit Agreement). 104 For purposes of determining any particular amount of Indebtedness under "Limitation on Incurrence of Additional Indebtedness" covenant, guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (19) above or is permitted to be incurred pursuant to the Consolidated Fixed Charge Coverage Ratio provisions of such covenant, we shall, in our sole discretion, classify or later reclassify such item of Indebtedness in any manner that complies with such covenant. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock and change in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of the "Limitations on Incurrence of Additional Indebtedness" covenant. "Permitted Investments" means: (1) Investments by us or any Restricted Subsidiary of ours in any Person that is or will become immediately after such Investment a Wholly Owned Domestic Restricted Subsidiary of ours or that will merge or consolidate into us or a Wholly Owned Domestic Restricted Subsidiary of ours and other Investments to the extent constituting intercompany Indebtedness permitted under clause (6) or (7) of the definition of "Permitted Indebtedness"; (2) Investments in us by any Restricted Subsidiary of ours; provided that any Indebtedness evidencing such Investment, to the extent held by a Restricted Subsidiary that is not a guarantor, is unsecured and subordinated, pursuant to a written agreement, to our obligations under the notes and the indenture; (3) Investments in cash and Cash Equivalents; (4) loans and advances to employees and officers of ours and our Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of $2.0 million at any one time outstanding; (5) Currency Agreements and Interest Swap Obligations entered into in the ordinary course of ours or our Restricted Subsidiaries' businesses and otherwise in compliance with the indenture; (6) additional Investments not to exceed $15.0 million at any one time outstanding; (7) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers; (8) Investments made by us or our Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with the "Limitation on Asset Sales" covenant; (9) Investments represented by guarantees that are otherwise permitted under the indenture; (10) Investments the payment for which is our Qualified Capital Stock; (11) any Investment by us or a Wholly Owned Subsidiary of ours in a Securitization Entity or any Investment by a Securitization Entity in any other Person in connection with a Qualified Securitization Transaction; provided that any Investment in a Securitization Entity is in the form of a Purchase Money Note or an equity interest; (12) Investments by us consisting of obligations of one or more officers, directors or other employees of ours or any of our subsidiaries in connection with such officers', directors' or employees' acquisition of shares of our capital stock so long as no cash is paid by us or any of our Subsidiaries to such officers, directors or employees in connection with the acquisition of any such obligations; and 105 (13) Investments in joint ventures not to exceed $15.0 million at any one time outstanding. "Permitted Liens" means the following types of Liens: (1) Liens for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate proceedings and as to which we or our Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP; (2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen and repairmen and other Liens imposed by law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP has been made in respect thereof; (3) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (4) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; (5) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect with the ordinary conduct of the business of ours or any of our Restricted Subsidiaries; (6) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (7) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof; (8) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of ours or any of our Restricted Subsidiaries, including rights of offset and set-off; (9) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under the Indenture; (10) Liens securing Capitalized Lease Obligations and Purchase Money Indebtedness permitted pursuant to clause (13) of the definition of "Permitted Indebtedness"; provided, however, that in the case of Purchase Money Indebtedness (a) the Indebtedness shall not exceed the cost of such property or assets and shall not be secured by any property or assets of ours or any Restricted Subsidiary of ours other than the property and assets so acquired or constructed and (b) the Lien securing such Indebtedness shall be created within 90 days of such acquisition or construction or, in the case of a refinancing of any Purchase Money Indebtedness, within 90 days of such refinancing; (11) Liens securing Indebtedness under Currency Agreements; (12) Liens securing Acquired Indebtedness incurred in accordance with the "Limitation on Incurrence of Additional Indebtedness" covenant; provided that: (a) such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by us or a Restricted Subsidiary of ours and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by us or a Restricted Subsidiary of ours; and 106 (b) such Liens do not extend to or cover any property or assets of ours or of any of our Restricted Subsidiaries other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of ours or a Restricted Subsidiary of ours and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by us or a Restricted Subsidiary of ours; (13) Liens on assets of a Restricted Subsidiary of ours that is not a guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under the indenture; (14) Liens on assets transferred to a Securitization Entity or on assets of a Securitization Entity, in either case incurred in connection with a Qualified Securitization Transaction and Liens in favor of the Factor solely on those accounts receivable and the rights ancillary thereto of ours and our Restricted Subsidiaries that are purchased by the Factor pursuant to the Factoring Agreement from time to time; (15) leases, subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of us and our Restricted Subsidiaries; (16) banker's Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary course of business; (17) Liens arising from filing Uniform Commercial Code financing statements regarding leases; (18) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods; (19) rights of customers with respect to inventory which arise from deposits and progress payments made in the ordinary course of business; (20) additional Liens not to exceed $5.0 million at any one time; and (21) the escrow of up to 6.4% of the Capital Stock of Potain to comply with the judgment or order of any court or to settle any judicial proceeding in whole or in part. "Person" means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof. "Preferred Stock" of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation. "Purchase Money Indebtedness" means Indebtedness of ours and our Restricted Subsidiaries incurred in the normal course of business for the purpose of financing all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment. "Purchase Money Note" means a promissory note of a Securitization Entity evidencing a line of credit, which may be irrevocable, from us or any subsidiary of ours in connection with a Qualified Securitization Transaction to a Securitization Entity, which note shall be repaid from cash available to the Securitization Entity other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest and principal and amounts paid in connection with the purchase of newly generated receivables or newly acquired equipment. "Qualified Capital Stock" means any Capital Stock that is not Disqualified Capital Stock. "Qualified Securitization Transaction" means any transaction or series of transactions that may be entered into by us, any of our Restricted Subsidiaries or a Securitization Entity pursuant to which we or such Restricted Subsidiary or that Securitization Entity may, pursuant to customary terms, sell, convey or otherwise transfer to, or grant a security interest in for the benefit of, (1) a Securitization Entity or us or any of our Restricted Subsidiaries that subsequently transfers to a Securitization Entity (in the case of a transfer by us or such Restricted Subsidiary) and (2) any other Person (in the case of transfer by a Securitization Entity), any 107 accounts receivable (whether now existing or arising or acquired in the future) of ours or any of our Restricted Subsidiaries that arose in the ordinary course of business of us and our Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets (including contract rights) that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable. "Refinance" means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. "Refinanced" and "Refinancing" shall have correlative meanings. "Refinancing Indebtedness" means any Refinancing by us or any Restricted Subsidiary of ours of Indebtedness incurred in accordance with the "Limitation on Incurrence of Additional Indebtedness" covenant (other than pursuant to clauses (2), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15) or (19) of the definition of Permitted Indebtedness), in each case that does not: (1) result in an increase in the aggregate principal amount of Indebtedness of such Person as of the date of such proposed Refinancing (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and plus the amount of reasonable expenses incurred by us in connection with such Refinancing); or (2) create Indebtedness with: (a) a Weighted Average Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or (b) a final maturity earlier than the final maturity of the Indebtedness being Refinanced; provided that (x) if such Indebtedness being Refinanced is Indebtedness solely of ours, then such Refinancing Indebtedness shall be Indebtedness solely of ours and (y) if such Indebtedness being Refinanced is subordinate or junior to the notes, then such Refinancing Indebtedness shall be subordinate to the notes at least to the same extent and in the same manner as the Indebtedness being Refinanced. "Representative" means the indenture trustee or other trustee, agent or representative in respect of any Designated Senior Debt; provided that if, and for so long as, any Designated Senior Debt lacks such a representative, then the Representative for such Designated Senior Debt shall at all times constitute the holders of a majority in outstanding principal amount of such Designated Senior Debt in respect of any Designated Senior Debt. "Restricted Subsidiary" of any Person means any subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary. "Sale and Leaseback Transaction" means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to us or a Restricted Subsidiary of any property, whether owned by us or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by us or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such Property. "Securitization Entity" means a Wholly Owned Subsidiary of ours (or another Person in which we or any subsidiary of ours makes an Investment and to which we or any subsidiary of ours transfers accounts receivable and related assets) that engages in no activities other than in connection with the financing of accounts receivable and that is designated by our Board of Directors as provided below as a Securitization Entity; and (1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which: (a) is guaranteed by us or any Restricted Subsidiary of ours (other than the Securitization Entity) (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness)) pursuant to Standard Securitization Undertakings, 108 (b) is recourse to or obligates us or any Restricted Subsidiary of ours (other than the Securitization Entity) in any way other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of ours or any Restricted Subsidiary of ours (other than the Securitization Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings and other than any interest in the accounts receivable and related assets being financed (whether in the form of an equity interest in such assets or subordinated indebtedness payable primarily from such financed assets), retained or acquired by us or any Restricted Subsidiary of ours; (2) with which neither we nor any Restricted Subsidiary of ours has any material contract, agreement, arrangement or understanding other than on terms no less favorable to us or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of ours, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity; and (3) to which neither we nor any Restricted Subsidiary of ours has any obligation to maintain or preserve such entity's financial condition or cause such entity to achieve certain levels of operating results. Any such designation by our Board of Directors shall be evidenced to the trustee by filing with the trustee a certified copy of the Board Resolution giving effect to such designation and an officers' certificate certifying that such designation complied with the foregoing conditions. "Senior Debt" means the principal of, premium, if any, and interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on any Indebtedness of ours, whether outstanding on the Issue Date or thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to the notes. Without limiting the generality of the foregoing, "Senior Debt" shall also include the principal of, premium, if any, interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on, and all other amounts owing in respect of: (1) all monetary obligations (including guarantees thereof) of every nature of ours under the Credit Agreement, including, without limitation, obligations (including guarantees) to pay principal, premium (if any) and interest, reimbursement obligations under letters of credit, fees, expenses and indemnities; (2) all Interest Swap Obligations (including guarantees thereof); and (3) all obligations under Currency Agreements (including guarantees thereof), in each case whether outstanding on the Issue Date or thereafter incurred. Notwithstanding the foregoing, "Senior Debt" shall not include: (1) any Indebtedness of ours to a subsidiary of ours; (2) any Indebtedness to, or guaranteed on behalf of, any director, officer or employee of (x) ours or (y) any subsidiary of ours (including amounts owed for compensation); (3) Indebtedness to trade creditors and other amounts incurred (but not under the Credit Agreement) in connection with obtaining goods, materials or services; (4) Indebtedness represented by Disqualified Capital Stock; (5) any liability for federal, state, local or other taxes owed or owing by us; (6) that portion of any Indebtedness incurred in violation of the indenture provisions set forth under "Covenants--Limitation on Incurrence of Additional Indebtedness" (but, as to any such obligation, no 109 such violation shall be deemed to exist for purposes of this clause (6) if the holder(s) of such obligation or their representative and the trustee shall have received an officers' certificate of ours to the effect that the incurrence of such Indebtedness does not (or, in the case of revolving credit indebtedness, that the incurrence of the entire committed amount thereof at the date on which the initial borrowing thereunder is made would not) violate such provisions of the indenture); (7) Indebtedness that, when incurred and without respect to any election under Section 1111(b) of Title 11, United States Bankruptcy Code, is without recourse to us; and (8) any Indebtedness that is, by its express terms, subordinated in right of payment to any other Indebtedness of ours. "Significant Subsidiary", with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a "significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the Securities Act. "Standard Securitization Undertakings" means representations, warranties, covenants and indemnities entered into by us or any subsidiary of ours that are reasonably customary in an accounts receivable securitization transaction. "subsidiary" with respect to any Person, means: (1) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person; or (2) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person. "Supplemental Indenture" means a supplemental indenture in the form to be attached to the indenture, executed and delivered to the trustee, pursuant to which each New Parent (i) will become a guarantor of the notes by executing a guarantee in the form also to be attached to the indenture, and (ii) becomes subject to the covenants contained in the indenture as described in such supplemental indenture. "Unrestricted Subsidiary" of any Person means: (1) any subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner provided below; and (2) any subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any subsidiary, including any newly acquired or newly formed subsidiary, to be an Unrestricted subsidiary unless such subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, ours or any other subsidiary of ours that is not a subsidiary of the subsidiary to be so designated; provided that: (1) we certify to the trustee that such designation complies with the "Limitation on Restricted Payments" covenant; and (2) each subsidiary to be so designated and each of its subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of ours or any of our Restricted Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if: (1) immediately after giving effect to such designation, we are is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant; and 110 (2) immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the trustee by promptly filing with the trustee a copy of the Board Resolution giving effect to such designation and an officers' certificate certifying that such designation complied with the foregoing provisions. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding aggregate principal amount of such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment. "Wholly Owned Restricted Subsidiary" of any Person means any Wholly Owned Subsidiary of such Person which at the time of determination is a Restricted Subsidiary of such Person. "Wholly Owned Subsidiary" of any Person means any subsidiary of such Person of which all the outstanding voting securities (other than (i) in the case of a Restricted Subsidiary that is incorporated in a jurisdiction other than a State in the United States or the District of Columbia, directors' qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law and (ii) in the case of Potain, up to 6.4% of the Capital Stock of Potain) are owned by such Person or any Wholly Owned Subsidiary of such Person. Registration Rights We, the guarantors and the initial purchaser entered into a registration rights agreement pursuant to which each of us and the guarantors agreed that they would: (1) within 75 days after the issue date of the old notes, file an exchange offer registration statement with respect to a registered offer to exchange the old notes for the new notes, and (2) cause the exchange offer registration statement to be declared effective under the Securities Act within 150 days after the issue date of the old notes. We will offer the new notes and the related guarantees in exchange for surrender of the old notes. We will keep the exchange offer open for not less than 30 days after the date notice of the exchange offer is mailed to holders of the old notes. For each of the old notes surrendered to us pursuant to the exchange offer, the holder of the old note who surrendered such note will receive a new note having a principal amount equal to that of the surrendered note. Interest on each new note will accrue (A) from the later of the last interest payment date on which interest was paid on the old note surrendered in exchange therefor, or if the old note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on such old note, from the issue date of the old notes. If (1) because of any change in law or in currently prevailing interpretations of the staff of the SEC, we are not permitted to effect an exchange offer, (2) we do not consummate the exchange offer within 180 days of the issue date of the old notes, (3) some holders of unregistered new notes so request, (4) because of any change in law or in currently prevailing interpretations of the staff of the SEC, a holder of the old notes is not permitted to participate in the exchange offer or (5) in the case of any holder of the old notes that participates in the exchange offer, such holder does not receive new notes on the date of the exchange that may be sold without restriction under state and federal securities laws, other than due solely to the status of such holder as an affiliate of ours or within the meaning of the Securities Act, then we will promptly deliver to the holders of the notes and the trustee written notice of these circumstances. We will then, at our sole expense, as promptly as practicable, file a shelf registration statement covering resales of the notes and use our best efforts to keep effective the shelf registration statement until the earlier of two years after the issue date of the old notes and such time as all of the applicable notes have been sold thereunder. If we file a shelf registration statement, then 111 we will provide to each holder of the old notes copies of the prospectus that is a part of the shelf registration statement, notify each such holder when the shelf registration statement for the old notes has become effective and take certain other actions as are required to permit unrestricted resales of the notes. A holder of the old notes that sells old notes pursuant to the shelf registration statement will be required to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the registration rights agreement that are applicable to such a holder, including indemnification rights and obligations. If we fail to meet the targets listed above, then additional interest will become payable in respect of the notes as follows: (1) if (A) we fail to file the exchange offer registration statement on or prior to the date specified for such filing or the shelf registration statement on or prior to 75 days after we deliver a shelf registration statement notice or (B) notwithstanding that we have consummated or will consummate an exchange offer, we are required to file a shelf registration statement and we do not file the shelf registration statement on or prior to the date required by the registration rights agreement, then commencing on the day after either such required filing date, additional interest will accrue on the principal amount of the notes at a rate of 0.50% per annum for the first 90 days immediately following each such filing date, such additional interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; or (2) if (A) neither the exchange offer registration statement is declared effective by the SEC on or prior to the specified date nor the shelf registration statement is declared effective by the SEC on or prior to 150 days after we deliver a shelf registration statement notice or (B) notwithstanding that we have consummated or will consummate an exchange offer, we are required to file a shelf registration statement and the shelf registration statement is not declared effective by the SEC on or prior to the date required by the registration rights agreement, then commencing on the day after such required effective date, additional interest will accrue on the principal amount of the notes at a rate of 0.50% per annum for the first 90 days immediately following such date, such additional interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; or (3) if (A) we have not exchanged new notes for all old notes validly tendered in accordance with the terms of the exchange offer on or prior to the 180th day after the issue date of the old notes or (B) if applicable, the shelf registration statement has been declared effective and the shelf registration statement ceases to be effective at any time prior to the second anniversary of the issue date of the old notes, then additional interest will accrue on the principal amount of the notes at a rate of 0.50% per annum for the first 90 days commencing on the 181st day after the issue date of the old notes, in the case of (A) above, or the day the shelf registration statement ceases to be effective, in the case of (B) above, such additional interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; provided, however, that the additional interest rate on the old notes may not accrue under more than one of the clauses above at any one time and at no time will the aggregate amount of additional interest accruing exceed in the aggregate 2.0% per annum; provided, further, however, that (a) upon the filing of the exchange offer registration statement or a shelf registration statement in the case of clause (1) above, (b) upon the effectiveness of the exchange offer registration statement or a shelf registration statement in the case of clause (2) above, or (c) upon the exchange of new notes for all old notes tendered in the case of clause (3) (A) above, or upon the effectiveness of the shelf registration statement which had ceased to remain effective in the case of clause (3) (B) above, additional interest on the old notes as a result of that clause will cease to accrue. Any amounts of additional interest due will be payable in cash on the same original interest payment dates as the old notes. 112 We will apply to list the new notes on the Luxembourg Stock Exchange in accordance with its rules once the exchange offer is completed. All notices regarding the new notes will, if and so long as the new notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, be published in a daily newspaper having general circulation in Luxembourg, which we expect to be the Luxemburger Wort. So long as the new notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, copies of all documentation in connection with the exchange offer will be available and all actions necessary in connection with the exchange offer can be carried out during normal business hours on any weekday at the office of the Luxembourg listing agent for the new notes. We will advise the Luxembourg Stock Exchange when the exchange offer opens and closes and will provide the Luxembourg Stock Exchange with a supplementary prospectus providing the new code, deposit date, exchange amount and principal amount of the notes and new notes outstanding. Description of Book-Entry System The new notes to be issued in the exchange offer will be represented by one or more global notes, which will be deposited with a common depositary for Euroclear and Clearstream Luxembourg, or its nominee. Thereafter, book-entry interests in the new notes will be shown on, and transfers thereof will be effected only through, records maintained in book-entry form by Euroclear and Clearstream Luxembourg and their participants. All holders of new notes who exchanged their old notes in the exchange offer will hold their interests through the global notes regardless of whether they purchased their interests pursuant to Rule 144A or Regulation S. Book-entry interests will not be held in definitive form. Instead, Euroclear or Clearstream Luxembourg will credit on their respective book-entry registration and transfer systems a participant's account with the interest beneficially owned by the participant. The laws of some jurisdictions, including some states of the United States, may require that some purchasers of securities take physical delivery of the securities in definitive form. These limitations may impair the ability to own, transfer or pledge book-entry interests. In addition, while the new notes are in global form, holders of book-entry interests will not be considered the owners or holders of new notes for any purpose. So long as the new notes are held in global form, the common depositary or its nominee will be considered the sole holders of global notes for all purposes under the indenture. In addition, participants must rely on the procedures of Euroclear and Clearstream Luxembourg and indirect participants must rely on the procedures of the participants through which they own book- entry interests to exercise any rights of holders of the new notes under the indenture. None of us, the trustee or the registrars will have any responsibility or be liable for any aspect of the records relating to the book-entry interests. Definitive Registered Notes Under the terms of the indenture, owners of book-entry interests will receive definitive registered notes: . if either Euroclear or Clearstream Luxembourg notifies us that it is unwilling or unable to continue to act as depositary and a successor depositary is not appointed by us within 120 days; . if Euroclear or Clearstream Luxembourg so request following an event of default under the indenture; . in whole (but not in part) at any time if we in our sole discretion determine that the global notes should be exchanged for definitive registered notes; or . the owner of a book-entry interest requests such exchange in writing delivered through either Euroclear or Clearstream Luxembourg following an event of default under the indenture. 113 In such an event, the registrar will issue definitive registered notes registered in the name or names and issued in any approved denominations, requested by or on behalf of Euroclear or Clearstream Luxembourg, as applicable, in accordance with their respective customary procedures and based upon directions received from participants reflecting the beneficial ownership of book-entry interests. Redemption of Global Notes In the event any global note, or any portion thereof, is redeemed, the depositary will redeem an equal amount of the book-entry interests in such global note from the amount received by it in respect of the redemption of such global note. The redemption price payable in connection with the redemption of such book-entry interests will be equal to the amount received by the common depositary in connection with the redemption of such global note, or any portion thereof. We understand that under existing practices of Euroclear and Clearstream Luxembourg, if fewer than all of the notes are to be redeemed at any time, Euroclear and Clearstream Luxembourg will credit their respective participants' accounts on a proportionate basis with adjustments to prevent fractions or by lot or on such other basis as they deem fair and appropriate; provided, however, that no book-entry interest of less than (Euro)1,000 principal amount may be redeemed in part. Payments on Global Notes Payments of any amounts owing in respect of a global note, including principal, premium, if any, and interest and additional interest, if any, will be made by us in euros to the relevant paying agents. The relevant paying agents will, in turn, make such payments to the common depositary for Euroclear and Clearstream Luxembourg which will distribute such payments to participants in accordance with its procedures. Under the terms of the indenture, we and the trustee will treat the registered holder of a global notes (e.g., the common depositary or its nominee) as the owner thereof for the purpose of receiving payments and for all other purposes. Consequently, none of us, the trustee or any agent of us or the trustee has or will have any responsibility or liability for: . any aspect of the records of Euroclear, Clearstream Luxembourg or any participant or indirect participant relating to or payments made on account of a book-entry interest or for maintaining, supervising or reviewing any of the records of Euroclear, Clearstream Luxembourg or any participant or indirect participant relating to or payments made on account of a book-entry interest; or . Euroclear, Clearstream Luxembourg or any participant or indirect participant. Payments by participants to owners of book-entry interests held through participants are the responsibility of such participants, as is now the case with securities held for the accounts of customers registered in "street name." Action by Owners of Book-Entry Interests Euroclear and Clearstream Luxembourg have advised us that they will take any action permitted to be taken by a holder of notes, including the presentation of notes for exchange as described above, only at the direction of one or more participants to whose account the book-entry interests in the global notes are credited and only in respect of such portion of the aggregate principal amount of notes as to which such participant or participants has or have given such direction. The common depositary will not exercise any discretion in the granting of consents, waivers or the taking of any other action in respect of the global notes. However, if there is an event of default under the notes, each of Euroclear and Clearstream Luxembourg reserve the right to exchange the global notes for definitive registered notes in certificated form, and to distribute such notes to its participants. 114 Information Concerning Euroclear and Clearstream Luxembourg We understand as follows with respect to Euroclear and Clearstream Luxembourg: Euroclear and Clearstream Luxembourg each hold securities for participating organizations and facilitate the clearance and settlement of securities transactions between their respective participants through electronic book- entry changes in accounts of such participants. Euroclear and Clearstream Luxembourg provide to their participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Euroclear and Clearstream Luxembourg interface with domestic securities markets. Euroclear and Clearstream Luxembourg participants are financial institutions such as underwriters, securities brokers and dealers, banks, trust companies and certain other organizations. Indirect access to Euroclear or Clearstream Luxembourg is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodian relationship with a Euroclear or Clearstream Luxembourg participant, either directly or indirectly. Global Clearance and Settlement Under the Book-Entry System Initial Settlement Initial settlement for the notes will be made in euros. Book-entry interests owned through Euroclear or Clearstream Luxembourg accounts will follow the settlement procedures applicable to conventional eurobonds in registered form. Book-entry interests will be credited to the securities custody accounts of Euroclear and Clearstream Luxembourg holders on the business day following the settlement date against payment for value on the settlement date. Secondary Market Trading The book-entry interests will trade through participants of Euroclear or Clearstream Luxembourg, and will settle in same-day funds. Since the purchase determines the place of delivery, it is important to establish at the time of trading of any book-entry interests where both the purchaser's and seller's accounts are located to ensure that settlement can be made on the desired value date. 115 UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS The following general discussion summarizes the material U.S. federal income tax aspects of the exchange offer to holders of old notes. The discussion is for general information purposes only, is limited to U.S. federal income tax consequences of the exchange offer, and does not consider the aspects of the ownership and dispositions of the old notes or the new notes. A discussion of the U.S. federal income tax consequences of holding and disposing of the notes is contained in the offering memorandum with respect to the old notes. This discussion does not consider the impact, if any, of the holder's personal circumstances on the tax consequences of the exchange offer to such holder. The discussion also does not address the U.S. federal income tax consequences of holders subject to special treatment under U.S. federal income tax laws, such as dealers in securities or foreign currency, tax-exempt entities, banks, thrifts, insurance companies, persons that hold the outstanding notes as part of a straddle, a hedge against currency risk, a conversion transaction, or other risk reduction transactions, or persons that have a functional currency other than the U.S. dollar and investors in pass- through entities. In addition, this discussion does not describe any state, local or foreign tax consequences from the exchange offer. This discussion is based upon the Internal Revenue Code, existing and proposed regulations thereunder, Internal Revenue Service ("IRS") rulings and pronouncements and judicial decisions now in effect, all of which are subject to change, possibly on a retroactive basis. This discussion does not foreclose the possibility of a contrary decision by the IRS or a court of competent jurisdiction, or of a contrary position by the IRS or Treasury Department in regulations or rulings issued in the future. Holders of old notes should consult their own tax advisors regarding the application of U.S. federal income tax laws, as well as the tax laws of any state, local, or foreign jurisdiction, to the exchange offer (and to holding and disposing of the securities) in light of their particular circumstances. The exchange of old notes for the new notes under the terms of the exchange offer should not constitute a taxable exchange. As a result: . A holder should not recognize taxable gain or loss as a result of exchanging old notes for the new notes under the terms of the exchange offer; . The holder's holding period of the new notes should include the holding period of the old notes exchanged for the new notes; and . A holder's adjusted tax basis in the new notes should be the same as the adjusted tax basis, immediately before the exchange, of the old notes exchanged for the new notes. 116 PLAN OF DISTRIBUTION If you are a broker-dealer and hold old notes for your own account as a result of market-making activities or other trading activities and you receive new notes in exchange for old notes in the exchange offer, then you may be a statutory underwriter and must acknowledge that you will deliver a prospectus in connection with any resale of these new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where such old notes were acquired as a result of market-making activities or other trading activities. We acknowledge and, unless you are a broker-dealer, you must acknowledge that you are not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in a distribution of new notes. We have agreed that, starting on the expiration date of the exchange offer and ending on the close of business on the 180th day following the expiration date of the exchange offer, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. Neither we nor any of the guarantors will receive any proceeds from any sale of new notes by broker-dealers. New notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes or a combination of those methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of these new notes may be deemed to be an "underwriter" within the meaning of the Securities Act, and any profit on any such resale of new notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. For a period of 180 days after the expiration date, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests those documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer, including the expenses of one counsel for the holders of the notes other than commissions or concessions of any broker-dealers and will indemnify the holders of the new notes, including any broker-dealers, against various liabilities, including liabilities under the Securities Act. We note, however, that, in the opinion of the SEC, indemnification against liabilities arising under federal securities laws is against public policy and may be unenforceable. 117 LEGAL MATTERS The validity of the new notes will be passed upon for us by Foley & Lardner, Milwaukee, Wisconsin. EXPERTS The financial statements of Manitowoc as of December 31, 2000 and 1999 and for each of the three years in the period ended December 31, 2000 included in this prospectus, have been so included in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The financial statements of Potain as of December 31, 2000 and 1999 and for each of the two years in the period ended December 31, 2000 included in this prospectus, have been so included in reliance on the report of Ernst & Young Audit, independent auditors, given on the authority of said firm as experts in auditing and accounting. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document that we file at the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C. and at regional SEC offices in Chicago, Illinois and New York, New York. You can call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. You can also find our public filings with the SEC on the internet at a website maintained by the SEC located at http://www.sec.gov. We are "incorporating by reference" specified documents that we file with the SEC, which means: . incorporated documents are considered part of this prospectus; . we are disclosing important information to you by referring you to those documents; and . information we file with the SEC will automatically update and supersede information contained in this prospectus. We incorporate by reference the documents we list below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus and before the expiration date of the exchange offer: . Our Annual Report on Form 10-K for the year ended December 31, 2000. . Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. . Our Current Reports on Form 8-K dated March 26, 2001, April 16, 2001, April 17, 2001, April 20, 2001 and May 9, 2001. You may request a copy of any of these filings, at no cost, by writing to Maurice D. Jones, General Counsel and Secretary, The Manitowoc Company, Inc., P.O. Box 66, Manitowoc, Wisconsin 54221-0066, or by calling Mr. Jones at (920) 684-4410. So long as the notes are listed on the Luxembourg Stock Exchange and the rules of that stock exchange shall require, copies of those filings will be available, at no cost, during normal business hours on any weekday at the office of the Luxembourg listing agent for the notes. 118 GENERAL LISTING INFORMATION We will apply to list the new notes on the Luxembourg Stock Exchange in accordance with its rules once the exchange offer has been completed. Prior to the listing, a legal notice relating to the issuance of the new notes and our articles of incorporation and those of the guarantors will be deposited with the Chief Registrar of the District Court of Luxembourg (Greffier en Chef du Tribunal d'Arrondissement de et a Luxembourg), where these documents are available for inspection and where copies of these documents may be obtained free of charge on request. As long as the notes are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, copies of our articles of incorporation and those of the guarantors and the indenture and the registration rights agreement relating to the new notes may be inspected, and our most recent audited annual consolidated financial statements and unaudited quarterly consolidated financial statements may be obtained, on any business day free of charge, at the office of the paying agent in Luxembourg. Our board of directors approved the issuance of the new notes on March 4, 2001. Except as disclosed in this prospectus, neither we nor the guarantors are involved in, or have any knowledge of a threat of, any litigation, administrative proceeding or arbitration which, in our judgment, is or may be material in the context of the issuance of the notes. Except as disclosed in this prospectus, there has been no material adverse change in our consolidated financial position since December 31, 2000. The new notes have been accepted for clearance through Euroclear and Clearstream Luxembourg with a Common Code of 013207810 and an International Securities Identification Number of US563571AB45. INFORMATION ABOUT THE GUARANTORS All of the guarantors are our direct or indirect wholly owned subsidiaries. The address of the guarantors is c/o The Manitowoc Company, Inc., 500 South 16th Street, Manitowoc, Wisconsin 54221. We are a holding company for our subsidiaries, including the guarantors, with no material operations of our own and only limited assets. Separate financial statements of the guarantors are not included in this prospectus because the guarantors are jointly and severally liable with respect to our obligations pursuant to the notes, and the aggregate net assets, earnings and equity of the guarantors and us are substantially equivalent to our net assets, earnings and equity on a consolidated basis. In addition, we do not prepare non-consolidated financial statements. Financial reports for the guarantors and us are available, free of charge, at the office of the paying agent in Luxembourg. The only guarantors that constitute at least 10% of our net assets or at least 10% of our consolidated net profit or loss are Manitowoc Foodservice Companies, Inc., a holding company for our food service businesses, and Manitowoc Crane Companies, Inc., a manufacturer of lattice-boom crawler cranes. As of December 31, 2000, Manitowoc Foodservice held 24.6%, and Manitowoc Cranes held 10.7%, of our assets on a pro forma basis. As of December 31, 2000, Manitowoc Foodservice had $213.0 million of shareholder's equity and Manitowoc Cranes had $41.9 million of shareholder's equity. 119 INDEX TO FINANCIAL STATEMENTS THE MANITOWOC COMPANY, INC. Consolidated Financial Statements Report of Independent Accountants......................................... F-2 Consolidated Statements of Earnings for the Years Ended December 31, 2000, 1999 and 1998............................................................ F-3 Consolidated Balance Sheets as of December 31, 2000 and 1999.............. F-4 Consolidated Statements of Cash Flow for the Years Ended December 31, 2000, 1999 and 1998...................................................... F-5 Consolidated Statements of Stockholders' Equity and Comprehensive Income for the Years Ended December 31, 2000, 1999 and 1998..................... F-6 Notes to Consolidated Financial Statements................................ F-7 Unaudited Consolidated Financial Statements Consolidated Statements of Earnings for the Three Months Ended March 31, 2001 and 2000 (unaudited)................................................ F-24 Consolidated Balance Sheets as of March 31, 2001 and December 31, 2000 (unaudited).............................................................. F-25 Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2001 and 2000 (unaudited)................................................ F-26 Consolidated Statements of Comprehensive Income for the Three Months Ended March 31, 2001 and 2000 (unaudited)...................................... F-27 Notes to Consolidated Financial Statements (unaudited).................... F-28 INDEX TO FINANCIAL STATEMENT SCHEDULE Report of Independent Accountants on Financial Statement Schedule......... F-32 Schedule II--Valuation and Qualifying Accounts............................ F-33 All other schedules are omitted because they are not applicable, not required or because the required information is included in the consolidated financial statements or notes thereto. POTAIN SA Consolidated Financial Statements Report of Independent Auditors............................................ F-34 Consolidated Statements of Income for the Years Ended December 31, 2000 and 1999................................................................. F-35 Consolidated Balance Sheets as of December 31, 2000 and 1999.............. F-36 Consolidated Statements of Cash Flow for the Years Ended December 31, 2000 and 1999................................................................. F-37 Notes to Consolidated Financial Statements................................ F-38
Unaudited Consolidated Financial Statements Consolidated Statement of Income for the Three Months Ended March 31, 2001 (unaudited)........................................................ F-55 Consolidated Balance Sheet as of March 31, 2001 (unaudited).............. F-56 Consolidated Statement of Cash Flow for the Three Months Ended March 31, 2001 (unaudited)........................................................ F-57 Notes to Consolidated Financial Statements (unaudited)................... F-58
F-1 THE MANITOWOC COMPANY, INC. REPORT OF INDEPENDENT ACCOUNTANTS To the Stockholders and Board of Directors of The Manitowoc Company, Inc. and Subsidiaries In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of earnings, stockholders' equity and comprehensive income, and cash flows present fairly, in all material respects, the financial position of The Manitowoc Company, Inc. and its Subsidiaries at December 31, 2000 and 1999, and the results of their operations and their cash flows for the years ended December 31, 2000, 1999 and 1998, in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with auditing standards generally accepted in the United States of America, which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. PRICEWATERHOUSECOOPERS LLP Milwaukee, Wisconsin January 26, 2001, except for information in Note 15, for which the date is March 4, 2001. F-2 THE MANITOWOC COMPANY, INC. CONSOLIDATED STATEMENTS OF EARNINGS (Thousands of dollars, except per share data)
For the Years Ended December 31, ---------------------------- 2000 1999 1998 -------- -------- -------- Earnings Net sales....................................... $873,272 $824,339 $703,920 -------- -------- -------- Costs and expenses: Cost of sales.................................. 637,538 590,627 508,299 Engineering, selling and administrative expenses...................................... 114,901 107,369 98,120 Amortization................................... 8,181 7,392 4,881 -------- -------- -------- Total costs and expenses..................... 760,620 705,388 611,300 -------- -------- -------- Earnings from operations........................ 112,652 118,951 92,620 Interest expense................................ (14,508) (10,790) (9,741) Other expense--net.............................. (2,024) (2,155) (1,467) -------- -------- -------- Earnings before taxes on income................. 96,120 106,006 81,412 Provision for taxes on income................... 35,852 39,222 30,032 -------- -------- -------- Net earnings.................................... $ 60,268 $ 66,784 $ 51,380 ======== ======== ======== Per Share Data Basic........................................... $ 2.42 $ 2.57 $ 1.98 Diluted......................................... $ 2.40 $ 2.55 $ 1.97
The accompanying notes are an integral part of these financial statements. F-3 THE MANITOWOC COMPANY, INC. CONSOLIDATED BALANCE SHEETS (Thousands of dollars, except share data)
As of December 31, ------------------- 2000 1999 --------- -------- ASSETS Current Assets: Cash and cash equivalents................................. $ 13,983 $ 10,097 Marketable securities..................................... 2,044 1,923 Accounts receivable, less allowances of $3,037 and $1,803................................................... 88,231 62,802 Inventories............................................... 91,178 91,437 Other current assets...................................... 7,479 2,211 Future income tax benefits................................ 20,592 22,528 --------- -------- Total current assets.................................... 223,507 190,998 --------- -------- Intangible assets--net...................................... 308,751 232,729 Property, plant and equipment--net.......................... 99,940 92,023 Other non-current assets.................................... 10,332 14,490 --------- -------- Total assets............................................ $ 642,530 $530,240 ========= ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Accounts payable and accrued expenses..................... $ 144,713 $141,909 Short-term borrowings..................................... 81,000 32,300 Current portion of long-term debt......................... 270 489 Product warranties........................................ 13,507 14,610 --------- -------- Total current liabilities............................... 239,490 189,308 --------- -------- Non-Current Liabilities: Long-term debt, less current portion...................... 137,668 79,223 Postretirement benefit obligation......................... 20,341 19,912 Other non-current liabilities............................. 11,262 9,621 --------- -------- Total non-current liabilities........................... 169,271 108,756 --------- -------- Commitments and contingencies............................... -- -- Stockholders' Equity: Common stock (36,746,482 shares issued)................... 367 367 Additional paid-in capital................................ 31,602 31,476 Accumulated other comprehensive loss...................... (2,569) (814) Retained earnings......................................... 334,433 281,672 Treasury stock, at cost (12,487,019 and 10,658,113 shares in 2000 and 1999, respectively).......................... (130,064) (80,525) --------- -------- Total stockholders equity............................... 233,769 232,176 --------- -------- Total liabilities and stockholders' equity.............. $ 642,530 $530,240 ========= ========
The accompanying notes are an integral part of these financial statements. F-4 THE MANITOWOC COMPANY, INC. CONSOLIDATED STATEMENTS OF CASH FLOW (Thousands of dollars)
For the Years Ended December 31, ------------------------------- 2000 1999 1998 --------- --------- --------- Cash Flows From Operations Net earnings................................. $ 60,268 $ 66,784 $ 51,380 Adjustments to reconcile net earnings to cash provided by operating activities: Depreciation................................ 9,872 9,321 9,729 Amortization of goodwill.................... 8,181 7,392 4,881 Amortization of deferred financing fees..... 672 637 420 Deferred income taxes....................... 7,148 (592) (5,748) Loss on sale of property, plant and equipment.................................. 274 557 928 Changes in operating assets and liabilities, excluding effects of business acquisitions: Accounts receivable......................... (6,568) 14,057 (6,120) Inventories................................. 6,402 (4,169) (18,662) Other current assets........................ (17) 3,389 (2,535) Non-current assets.......................... 777 (2,935) 483 Current liabilities......................... (25,452) 9,914 24,291 Non-current liabilities..................... 1,490 (984) (2,233) --------- --------- --------- Net cash provided by operations........... 63,047 103,371 56,814 ========= ========= ========= Cash Flows From Investing Business acquisitions--net of cash acquired.. (98,982) (62,104) (48,175) Capital expenditures......................... (13,415) (13,714) (11,678) Proceeds from sale of property, plant and equipment................................... 3,481 6,491 1,329 Purchase of marketable securities--net....... (121) (89) (94) --------- --------- --------- Net cash used for investing............... (109,037) (69,416) (58,618) ========= ========= ========= Cash Flows From Financing Dividends paid............................... (7,507) (7,799) (7,781) Proceeds from long-term debt................. -- -- 75,000 Payments on long-term debt................... (1,093) (11,090) (65,957) Proceeds (payments) from revolver borrowings--net............................. 83,319 (16,200) (600) Proceeds from issuance of commercial paper-- net......................................... 24,700 -- -- Debt acquisition costs....................... -- (574) (521) Treasury stock purchases..................... (49,752) -- -- Exercises of stock options................... 339 1,241 355 --------- --------- --------- Net cash provided by (used for) financing..... 50,006 (34,422) 496 --------- --------- --------- Effect of exchange rate changes on cash....... (130) (18) 2 --------- --------- --------- Net increase (decrease) in cash and cash equivalents.................................. 3,886 (485) (1,306) Balance at beginning of year.................. 10,097 10,582 11,888 --------- --------- --------- Balance at end of year........................ $ 13,983 $ 10,097 $ 10,582 ========= ========= ========= Supplemental Cash Flow Information Interest paid................................ $ 11,837 $ 10,137 $ 8,490 --------- --------- --------- Income taxes paid............................ $ 36,632 $ 41,327 $ 37,108 ========= ========= =========
The accompanying notes are an integral part of these financial statements. F-5 THE MANITOWOC COMPANY, INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME (Thousands of dollars, except shares and per share data)
For the Years Ended December 31, ---------------------------------- 2000 1999 1998 ---------- ---------- ---------- Common Stock--Shares Outstanding Balance at beginning of year............... 26,088,369 17,304,578 17,269,175 Treasury stock purchases................... (1,882,900) -- -- Three-for-two stock split.................. -- 8,652,289 -- Stock options exercised.................... 68,919 144,177 39,694 Stock swaps for stock options exercised.... (14,925) (12,675) (4,291) ---------- ---------- ---------- Balance at end of year..................... 24,259,463 26,088,369 17,304,578 ---------- ---------- ---------- Common Stock--Par Value Balance at beginning of year............... $ 367 $ 245 $ 245 Three-for-two stock split.................. -- 122 -- ---------- ---------- ---------- Balance at end of year..................... $ 367 $ 367 $ 245 ---------- ---------- ---------- Additional Paid-In Capital Balance at beginning of year............... $ 31,476 $ 31,029 $ 30,980 Three-for-two stock split.................. -- (122) -- Stock options exercised.................... 126 569 49 ---------- ---------- ---------- Balance at end of year..................... $ 31,602 $ 31,476 $ 31,029 ---------- ---------- ---------- Accumulated Other Comprehensive Loss Balance at beginning of year............... $ (814) $ (212) $ (192) Other comprehensive loss................... (1,755) (602) (20) ---------- ---------- ---------- Balance at end of year..................... $ (2,569) $ (814) $ (212) ---------- ---------- ---------- Retained Earnings Balance at beginning of year............... $ 281,672 $ 222,687 $ 179,088 Net earnings............................... 60,268 66,784 51,380 Cash dividends*............................ (7,507) (7,799) (7,781) ---------- ---------- ---------- Balance at end of year..................... $ 334,433 $ 281,672 $ 222,687 ---------- ---------- ---------- Treasury Stock Balance at beginning of year............... $ (80,525) $ (81,197) $ (81,503) Treasury stock purchases................... (49,752) -- -- Stock options exercised.................... 675 1,088 448 Stock swaps for stock options exercised.... (462) (416) (142) ---------- ---------- ---------- Balance at end of year..................... $ (130,064) $ (80,525) $ (81,197) ---------- ---------- ---------- Comprehensive Income Net earnings............................... $ 60,268 $ 66,784 $ 51,380 Other comprehensive loss: Foreign currency translation adjustment.... (1,755) (602) (20) ---------- ---------- ---------- Comprehensive income....................... $ 58,513 $ 66,182 $ 51,360 ========== ========== ==========
- -------- * Cash dividends per share after giving effect to the three-for-two stock split in 1999 were $.30 per share. The accompanying notes are an integral part of these financial statements. F-6 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Thousands of dollars, except share and per share data or where otherwise indicated) 1. Summary of Significant Accounting Policies Principles of Consolidation--The consolidated financial statements include the accounts of The Manitowoc Company, Inc. (the "company") and its wholly and partially owned domestic and non-U.S. subsidiaries. All significant intercompany balances and transactions have been eliminated. Use of Estimates--The financial statements of the company have been prepared in accordance with generally accepted accounting principles, which require management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, expenses, and related disclosures for the years presented. They also affect the disclosures of contingencies. Actual results could differ from those estimates. Cash Equivalents--All short-term investments purchased with an original maturity of three months or less are considered cash equivalents. Marketable Securities--Marketable securities at December 31, 2000 and 1999 included $2.0 million and $1.9 million, respectively, of securities which are available for sale. The difference between fair market value and cost for these investments was not significant in either year. Inventories--Inventories are stated at the lower of cost or market as described in Note 4. Finished goods and work-in-process include material, labor and manufacturing overhead costs. Advance payments from customers are netted against inventories to the extent of related accumulated costs. Advance payments netted against inventories at December 31, 2000 and 1999 were $539 and $202, respectively. Advance payments received in excess of related costs on uncompleted contracts are classified with accrued expenses. Intangible Assets--Intangible assets consist primarily of costs in excess of net assets of businesses acquired (goodwill). Intangible assets are amortized using the straight-line method over their estimated beneficial lives, not to exceed 40 years. Subsequent to an acquisition, the company annually evaluates whether later events and circumstances have occurred that indicate the remaining estimated useful life of intangibles may warrant revision or that the remaining balance of intangibles may not be recoverable. When factors indicate that intangibles should be evaluated for possible impairment, the company uses an estimate of the related business' undiscounted net cash flows over the remaining life of the intangibles in measuring whether the intangibles are recoverable. Intangible assets at December 31, 2000 and 1999 of $308,751 and $232,729, respectively, are net of accumulated amortization of $29,368 and $20,515, respectively. Property, Plant and Equipment--Property, plant and equipment is depreciated over the estimated useful lives of the assets primarily using the straight-line depreciation method. Expenditures for maintenance, repairs and renewals of relatively minor items are charged to expense as incurred. Renewals of significant items that substantially extend the capacity or useful life of an asset are capitalized. The cost and accumulated depreciation for property, plant and equipment sold, retired, or otherwise disposed of are relieved from the accounts, and resulting gains or losses are reflected in income. Property, plant and equipment is depreciated over the following estimated useful lives:
Years ----- Buildings and improvements............. 40 Drydocks and dock fronts............... 15-27 Machinery, equipment and tooling....... 4-15 Furniture and fixtures................. 10 Computer hardware and software......... 3-5
F-7 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Fair Value of Financial Instruments--The carrying amounts reported in the Consolidated Balance Sheets for cash and cash equivalents, accounts receivable, accounts payable, and short-term borrowings approximate fair value due to the immediate short-term maturity of these financial instruments. The carrying amount reported for long-term debt approximates fair value since either the underlying instrument bears interest at a variable rate that reprices frequently or the interest rate approximates the market rate at December 31, 2000. The fair value of interest rate swaps is the amount at which they could be settled, based on estimates obtained from financial institutions. Warranties--Estimated warranty costs are provided at the time of sale of the warranted products, based on historical warranty experience for the related product. Environmental Liabilities--The company accrues for losses associated with environmental remediation obligations when such losses are probable and reasonably estimable. Such accruals are adjusted as information develops or circumstances change. Costs of long-term expenditures for environmental remediation obligations are not discounted to their present value. Postretirement Benefits--The expected cost of postretirement benefits are recorded during the years that the employees render service. The obligation for these benefits and the related periodic costs are measured using actuarial techniques and assumptions, including an appropriate discount rate. Actuarial gains and losses are deferred and amortized over future periods. Foreign Currency Translation--The financial statements of the company's non- U.S. subsidiaries are translated using the current exchange rate for assets and liabilities and the weighted average exchange rate for the year for statement of earnings items. Resulting translation adjustments are recorded directly to a separate component of stockholders' equity referred to as other comprehensive income. Derivative Financial Instruments--Derivative financial instruments are used by the company to manage risks associated with interest rate market volatility. Interest rate swap agreements are used to modify the company's exposure to interest rate movements on floating rate debt and reduce borrowing costs. For interest rate swap agreements, net interest payments or receipts are recorded as adjustments to interest expense on a current basis. These activities are subject to established policies which, among other matters, prohibit the use of derivative financial instruments for trading or speculative purposes. In June 1998, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative Instruments and Hedging Activities." This statement, as amended by SFAS 137 and 138, is effective January 1, 2001 for the company. It requires all derivative instruments to be recorded on the balance sheet as assets or liabilities, at fair value. Changes in the fair value of derivatives are recorded each period in current earnings or comprehensive income, depending on whether a derivative is designated and qualifies as part of a hedge transaction and if so, the type of hedge transaction. Management anticipates that, due to the nature of its risk management activities, the adoption of SFAS 133 will not have a significant effect on the company's earnings or its financial position. Revenue Recognition--Revenues and expenses in all business segments are generally recognized upon shipment or completion of service provided, reflecting the time that title and risk and reward of ownership generally are transferred to the customer. Revenues and costs on contracts for long-term projects, however, are recognized according to the percentage-of-completion method, commencing when work has progressed to a state where estimates are reasonably accurate. These estimates are reviewed and revised periodically throughout the lives of the contracts, and adjustments to income resulting from such revisions are recorded in the accounting period in which the revisions are made. Estimated losses on such contracts are recognized in full when they are identified. F-8 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The cost of shipping and handling is included in cost of sales. During the fourth quarter of 2000, the company adopted Emerging Issues Task Force (EITF) Issue 99-19 "Reporting Revenue Gross as a Principal versus Net as an Agent." Net sales amounts have been restated for 1999 and 1998 to reclassify certain Crane segment costs from net sales to cost of sales. The impact of this reclassification was to increase net sales and cost of sales by $3,863, $4,279, and $3,684 in the first, second and third quarters of 2000, respectively, and increase net sales and cost of sales by $18,848 and $9,098 for the years ended December 31, 1999 and 1998, respectively, from amounts previously reported. Research and Development--Research and development costs are charged to expense as incurred and amounted to $6,747, $6,876 and $4,704 in 2000, 1999 and 1998, respectively. Income Taxes--The company utilizes the liability method to recognize deferred tax assets and liabilities for the expected future income tax consequences of events that have been recognized in the company's financial statements. Under this method, deferred tax assets and liabilities are determined based on the temporary differences between financial statement carrying amounts and the tax basis of assets and liabilities using enacted tax rates in effect in the years in which the temporary differences are expected to reverse. Earnings Per Share--Basic earnings per share is computed by dividing net earnings by the weighted average number of common shares outstanding during each year/period. Diluted earnings per share is computed similar to basic earnings per share except that the weighted average shares outstanding is increased to include the number of additional shares that would have been outstanding if stock options were exercised and the proceeds from such exercise were used to acquire shares of common stock at the average market price during the year/period. Comprehensive Income--Comprehensive income includes, in addition to net income, other items that are reported as direct adjustments to stockholders' equity. Presently, the company's foreign currency translation item is the only item which requires inclusion in the Consolidated Statements of Stockholders' Equity and Comprehensive Income. Reclassifications-- Certain prior year amounts have been reclassified to conform to the current year's presentation. 2. Property, Plant and Equipment Property, plant and equipment at December 31 is summarized as follows:
2000 1999 --------- --------- Land................................................... $ 3,888 $ 3,440 Buildings and improvements............................. 75,430 65,651 Drydocks and dock fronts............................... 21,389 21,675 Machinery, equipment, and tooling...................... 116,950 105,124 Furniture and fixtures................................. 4,628 3,623 Computer hardware and software......................... 11,710 8,795 Construction in progress............................... 3,876 6,044 --------- --------- Total cost........................................... 237,871 214,352 Less accumulated depreciation.......................... (137,931) (122,329) --------- --------- Property, plant and equipment--net..................... $ 99,940 $ 92,023 ========= =========
F-9 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 3. Inventories The components of inventories at December 31 are summarized as follows:
2000 1999 -------- -------- Raw materials............................................ $ 33,935 $ 39,134 Work-in-process.......................................... 32,914 30,218 Finished goods........................................... 45,880 42,352 -------- -------- Total inventories at FIFO cost........................... 112,729 111,704 Excess of FIFO cost over LIFO value...................... (21,551) (20,267) -------- -------- Total inventories...................................... $ 91,178 $ 91,437 ======== ========
Inventories are carried at the lower of cost or market using the first-in, first-out (FIFO) method for 57% of total inventory for 2000 and 1999. The remainder of the inventories are costed using the last-in, first-out (LIFO) method. 4. Accounts Payable and Accrued Expenses Accounts payable and accrued expenses at December 31 are summarized as follows:
2000 1999 -------- -------- Trade accounts payable.................................... $ 64,269 $ 59,609 Employee related expenses................................. 13,964 8,473 Profit sharing and incentives............................. 23,280 26,974 Income taxes payable...................................... -- 6,877 Customer progress payments................................ 877 3,518 Accrued product liability................................. 8,432 8,219 Miscellaneous accrued expenses............................ 33,891 28,239 -------- -------- Total................................................... $144,713 $141,909 ======== ========
5. Debt Debt at December 31 is summarized as follows:
2000 1999 -------- -------- Notes payable............................................. $ 75,000 $ 75,000 Industrial revenue bonds.................................. 3,619 4,712 Revolver borrowings....................................... 115,600 32,300 Commercial paper.......................................... 24,719 -- -------- -------- 218,938 112,012 Less current portion...................................... 81,270 32,789 -------- -------- $137,668 $ 79,223 ======== ========
On April 6, 1999, the company amended and restated its existing Credit Agreement (Agreement) with a group of banks in order to increase the amount of funds available and extend the maturity date to April 6, 2004. Currently, the Agreement provides for maximum borrowings of $300 million under revolving line- of-credit and a letter-of-credit subfacility. There were $115.6 million and $32.3 million of borrowings outstanding under the revolving line-of-credit portion of the Agreement at December 31, 2000 and 1999, respectively. F-10 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The Agreement includes covenants, the most restrictive of which require the maintenance of various debt and net worth ratios. An annual commitment fee, calculated based upon the company's consolidated leverage ratio, as defined by the Agreement, is due on the unused portion of the facility quarterly. The commitment fee in effect at the end of both 2000 and 1999 on the unused portion of the available credit was 0.15%. Borrowings under the Agreement bear interest at a rate equal to the sum of the base rate, or a Eurodollar rate, at the option of the company, plus an applicable percentage based on the company's consolidated leverage ratio, as defined by the Agreement. The base rate is equal to the greater of the federal funds rate in effect on such day plus 0.5%, or the prime rate in effect on such day. Borrowings under the Agreement are not collateralized. The weighted average interest rate for the borrowings outstanding under the Agreement at December 31, 2000 and 1999 was 7.2% and 7.6%, respectively. In January 2000, the company initiated a program under which it may borrow up to $25 million through the issuances of commercial paper to be used for general purposes. Borrowings through the program are not collateralized and are fully and unconditionally guaranteed by the company. The company is required to maintain an available unused balance under its Credit Agreement sufficient to support outstanding amounts of commercial paper. There were $24.7 million of commercial paper borowings outstanding at December 31, 2000 with an average maturity of 27 days and an average interest rate of 7.0%. On April 2, 1998, the company privately placed $50 million of Series A Senior Notes with Prudential Insurance Company. On October 31, 1998, the company issued, also with Prudential Insurance Company, $25 million in principal amount of Senior Shelf Notes (collectively referred to as the "Notes"). The company used the proceeds from the sale of the Notes to pay down existing borrowings under a term loan and finance an acquisition. The Notes are not collateralized and bear interest at a fixed weighted average rate of 6.53%. The Notes mature in 12 years after issuance and require equal principal payments annually beginning in 2006. The agreement between the company and Prudential Insurance Company pursuant to which the Notes were issued includes covenants, the most restrictive of which require the company to maintain certain debt ratios and levels of net worth. These covenants are no more restrictive than the covenants made by the company in connection with the aforementioned Credit Agreement. The company enters into interest rate swap agreements to reduce the impact of changes in interest rates on its floating rate debt. At December 31, 2000, the company had outstanding one interest rate swap agreement with a financial institution, having a total notional principal amount of $12.5 million and expiring October 2002. The effect of this agreement on the company's interest rates during 2000 was not significant. Interest expense has been adjusted for the net receivable or payable under this agreement. The fair value of this interest rate swap agreement was nominal at December 31, 2000. The company is exposed to credit losses in the event of non-performance by the financial institution. However, management does not anticipate such non-performance. Industrial revenue bonds relate to the company's obligations on two properties located in Tennessee and Indiana. These obligations are due in monthly or annual installments including principal and interest at rates of 2.7% and 10.0% at December 31, 2000. These obligations mature at various dates through 2004. F-11 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The aggregate scheduled maturities of debt and industrial revenue bond obligations as well as projected paydown of the revolving line-of-credit in subsequent years are as follows: 2001................................ $ 81,270 2002................................ 59,518 2003................................ 250 2004................................ 2,900 2005................................ -- Thereafter.......................... 75,000 -------- $218,938 ========
On May 28, 1999, the company entered into an accounts receivable sales arrangement with a bank. The company sold $148.0 million and $67.2 million in accounts receivable to the bank under this arrangement during 2000 and 1999, respectively. The company had a $23.1 and $8.4 million net factoring liability of uncollected accounts receivable due to the bank at December 31, 2000 and 1999, respectively. The cash flow impact of this arrangement is reported as cash flows from operations in the 2000 and 1999 Consolidated Statements of Cash Flows. Under this arrangement, the company is required to repurchase from the bank the first $0.5 million and amounts greater than $1.0 million of the aggregate uncollected receivables during a twelve month period. 6. Income Taxes Components of earnings before income taxes are as follows:
For the Years Ended December 31, ------------------------- 2000 1999 1998 ------- -------- ------- Earnings (loss) before income taxes: Domestic........................................ $94,220 $106,234 $81,081 Foreign......................................... 1,900 (228) 331 ------- -------- ------- Total......................................... $96,120 $106,006 $81,412 ======= ======== =======
The provision for taxes on income is as follows:
For the Years Ended December 31, ------------------------ 2000 1999 1998 ------- ------- ------- Current: Federal.......................................... $24,418 $36,715 $32,251 State............................................ 3,081 3,291 3,424 Foreign.......................................... 252 (192) 105 ------- ------- ------- Total current.................................. 27,751 39,814 35,780 Deferred--federal and state........................ 8,101 (592) (5,748) ------- ------- ------- Provision for taxes on income...................... $35,852 $39,222 $30,032 ======= ======= =======
F-12 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The Federal statutory income tax rate is reconciled to the company's effective income tax rate as follows:
For the Years Ended December 31, ---------------- 2000 1999 1998 ---- ---- ---- Federal income tax at statutory rate....................... 35.0% 35.0% 35.0% State income taxes, net of federal income tax benefit...... 2.3 2.2 2.6 Non-deductible goodwill amortization....................... 1.7 1.4 1.1 Tax-exempt FSC income...................................... (0.9) (1.2) (1.1) Other items................................................ (0.8) (0.4) (0.7) ---- ---- ---- Provision for taxes on income.............................. 37.3% 37.0% 36.9% ==== ==== ====
The deferred income tax accounts reflect the impact of temporary differences between the basis of assets and liabilities for financial reporting purposes and their related basis as measured by income tax regulations. A summary of the deferred income tax accounts at December 31 is as follows:
2000 1999 -------- -------- Current deferred tax assets: Inventories........................................... $ 6,037 $ 4,365 Accounts receivable................................... 1,035 925 Product warranty reserves............................. 4,553 5,339 Product liability reserves............................ 3,245 3,165 Other employee-related benefits and allowances........ 4,474 5,124 Other................................................. 1,248 3,610 -------- -------- Future income tax benefits, current..................... $ 20,592 $ 22,528 ======== ======== Non-current deferred tax assets (liabilities): Property, plant and equipment......................... $(17,510) $(11,753) Postretirement benefits............................... 7,853 7,775 Deferred employee benefits............................ 4,938 4,782 Severance benefits.................................... 1,069 1,106 Product warranty reserves............................. 1,205 1,130 Net operating loss carryforwards...................... 1,976 1,874 Other................................................. 1,862 399 -------- -------- Net future income tax benefits, non-current............. $ 1,393 $ 5,313 ======== ========
The company does not provide for taxes which would be payable if undistributed earnings of foreign subsidiaries or its foreign affiliate were remitted because the company either considers these earnings to be invested for an indefinite period or anticipates that when such earnings are distributed, the U.S. income taxes payable would be substantially offset by foreign tax credits. As of December 31, 2000, the company had repurchased approximately $25.0 million of state net operating loss carryforwards, which are available to reduce future state tax liabilities. The company also has acquired federal net operating losses of $2.0 million available to reduce federal taxable income. These loss carryforwards expire in varying amounts through 2012. The company does not maintain a valuation allowance against deferred tax assets due to the existence of certain tax strategies designed to utilize these net operating loss carryforwards. F-13 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 7. Earnings Per Share The following is a reconciliation of the average shares outstanding used to compute basic and diluted earnings per share.
For the Years Ended December 31, ------------------------------------------------------- 2000 1999 1998 ----------------- ----------------- ----------------- Per Per Per Share Share Share Shares Amount Shares Amount Shares Amount ---------- ------ ---------- ------ ---------- ------ Basic EPS............... 24,891,387 $ 2.42 25,991,711 $ 2.57 25,932,356 $ 1.98 Effect of dilutive securities--stock options................ 231,408 (0.02) 208,955 (0.02) 192,711 (0.01) ---------- ------ ---------- ------ ---------- ------ Diluted EPS............. 25,122,795 $ 2.40 26,200,666 $ 2.55 26,125,067 $ 1.97 ========== ====== ========== ====== ========== ======
8. Stockholders' Equity Authorized capitalization consists of 75 million shares of $.01 par value common stock and 3.5 million shares of $.01 par value preferred stock. None of the preferred shares have been issued. Pursuant to a Rights Agreement dated August 5, 1996, each common share carries with it four-ninths of a Right to purchase additional stock. The Rights are not currently exercisable and cannot be separated from the shares unless certain specified events occur, including the acquisition of 20% or more of the common stock by a person or group, or the commencement of a tender offer for 20% or more of the common stock. In the event a person or group actually acquires 20% or more of the common stock, or if the company is merged with an acquiring person, subject to approval by the board of directors, each full Right permits the holder to purchase one share of common stock for $100. The Rights expire on September 18, 2006 and may be redeemed by the company for $.01 per Right (in cash or stock) under certain circumstances. On February 17, 1999, the company's board of directors authorized a three- for-two stock split of the company's shares in the form of a 50 percent stock dividend payable on April 1, 1999 to shareholders of record on March 1, 1999. As a result of the stock split, 8,652,289 shares were issued. All references in the financial statements to average number of shares outstanding, earnings per share amounts, and market prices per share of common stock have been restated to reflect this split. Currently, the company has the authorization to repurchase up to 2.5 million shares of common stock at management's discretion. As of December 31, 2000 the company repurchased approximately 1.9 million shares at a cost of $49,752 pursuant to this authorization. 9. Stock Options The company maintains two stock option plans, The Manitowoc Company, Inc. Stock Plan and The Manitowoc Company, Inc. Non-Employee Director Stock Plan, for the granting of stock options as an incentive to certain employees and to non-employee members of the board of directors. Under these Plans, stock options to acquire up to 1.125 million (employees) and 0.125 million (non- employee directors) shares of common stock, in the aggregate, may be granted under a time-vesting formula at an exercise price equal to the market price of the common stock at the date of grant. The options become exercisable in equal 25% increments beginning on the second anniversary of the grant date over a four year period and expire ten years subsequent to the grant date. Stock option transactions under these Plans for the years ended December 31, 2000, 1999 and 1998 are summarized as follows: F-14 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
For the Years Ended December 31, --------------------------------------------------------- 2000 1999 1998 ------------------- ------------------ ------------------ Weighted Weighted Weighted Average Average Average Exercise Exercise Exercise Shares Price Shares Price Shares Price --------- -------- -------- -------- -------- -------- Options outstanding, beginning of year...... 611,881 $21.94 610,006 $18.63 608,181 $13.66 Options granted......... 936,900 21.20 221,557 25.58 209,400 30.54 Options exercised....... (68,919) 11.97 (144,177) 11.50 (59,541) 8.33 Options forfeited....... (162,733) 23.08 (75,505) 25.84 (148,034) 19.19 --------- ------ -------- ------ -------- ------ Options outstanding, end of year................ 1,317,129 21.80 611,881 21.94 610,006 18.63 ========= ====== ======== ====== ======== ====== Options exercisable, end of year................ 120,906 $19.53 47,444 $15.58 54,134 $ 9.02 ========= ====== ======== ====== ======== ======
The outstanding stock options at December 31, 2000, have a range of exercise prices of $7.78 to $33.06 per option. The following shows the options outstanding and exercisable by range of exercise prices at December 31, 2000:
Weighted Average Remaining Weighted Weighted Contractual Average Average Life Exercise Exercise Range of Exercise prices Outstanding (Years) Price Exercisable Price - ------------------------ ----------- ----------- -------- ----------- -------- $7.78-$9.93.............. 46,505 4.3 $ 9.33 34,353 $ 9.12 $18.78-$25.58............ 1,158,723 9.0 21.44 53,704 19.44 $30.54-$33.06............ 111,901 6.9 30.61 32,849 30.54 --------- --- ------ ------- ------ 1,317,129 8.7 $21.80 120,906 $19.53 ========= === ====== ======= ======
The weighted average fair value at date of grant for options granted during 2000, 1999 and 1998 was $8.92, $9.56 and $11.77 per option, respectively. The fair value of options at date of grant was estimated using the Black-Scholes option pricing model with the following weighted average assumptions:
2000 1999 1998 ---- ---- ---- Expected life (years)...................................... 7 7 7 Risk-free interest rate.................................... 5.5% 5.0% 5.8% Expected volatility........................................ 34.0% 30.9% 31.9% Expected dividend yield.................................... 1.0% 1.3% 1.5%
The company applies Accounting Principles Board Opinion No. 25, under which no compensation cost has been recognized in the Consolidated Statements of Earnings. Had compensation cost been determined under an alternative method suggested by SFAS No. 123, "Accounting for Stock-Based Compensation," net income would have decreased $1,336, $877, and $547 in 2000, 1999, and 1998, respectively; and diluted earnings per share would have been $2.35, $2.52 and $1.95 in 2000, 1999, and 1998, respectively. 10. Acquisitions 2000 On November 20, 2000, the company, purchased all of the issued and outstanding shares of MMC Acquisition Company, the parent of Marinette Marine Corporation. Marinette Marine, located in Marinette, Wisconsin, operates one of the largest shipyards on the U.S. Great Lakes. Marinette Marine is currently under contract to build a series of ocean-going buoy tenders for the United States Coast Guard. Marinette Marine F-15 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) presently employs approximately 800 people and features complete in-house capabilities for all shipbuilding disciplines. The aggregate consideration paid by the company for Marinette Marine was $66,092, which is net of $18,640 of cash acquired and includes direct acquisition costs of $531 and assumed liabilities of $17,431. The purchase price for this acquisition is subject to a post-closing working capital adjustment to be settled in 2001. The acquisition of Marinette Marine has been recorded using the purchase method of accounting. The cost of the acquisition has been allocated on the basis of the estimated fair values of the assets acquired and the liabilities assumed. The preliminary estimate of the excess of the cost over the fair value of the net assets acquired is $45,297 and is being amortized over a weighted average life of 38 years. On April 7, 2000, the company, through a wholly-owned subsidiary, acquired substantially all of the net business assets of Harford Duracool, LLC (Harford). Harford is a leading manufacturer of walk-in refrigerators and freezers and maintains a 67,000-square-foot manufacturing facility in Aberdeen, Maryland. Its primary distribution channels are foodservice equipment dealers and commercial refrigeration distributors and its products range in size from 200 to 60,000 cubic feet. Harford also manufactures a line of modular, temperature-controlled structures for other niche markets. The aggregate consideration paid by the company for the assets of Harford was $21,228 which includes direct acquisition costs of $534, assumed liabilities of $1,448 and the payment of a post-closing working capital adjustment in September 2000 of $267. The acquisition of Harford has been recorded using the purchase method of accounting. The cost of the acquisition has been allocated on the basis of the estimated fair values of the assets acquired and the liabilities assumed. The excess of the cost over the fair value of the net assets acquired is $14,959 and is being amortized over a weighted average life of 35 years. On March 31, 2000, the company acquired all of the issued and outstanding shares of Multiplex Company, Inc. (Multiplex). Multiplex is headquartered in St. Louis, Missouri, where its production facility is located and has operations in Frankfurt, Germany and Glasgow, UK. Multiplex manufactures soft- drink and beer dispensing equipment as well as water purification systems and supplies leading quick-service restaurants, convenience stores, and movie theatres. In addition, Multiplex designs and builds custom applications to meet the needs of customers with requirements that cannot be met by conventional dispensing equipment. The aggregate consideration paid by the company for the shares of Multiplex was $20,509, which is net of cash acquired of $3,698 and includes direct acquisition costs of $386, and assumed liabilities of $5,305. The acquisition of Multiplex has been recorded using the purchase method of accounting. The cost of the acquisition has been allocated on the basis of the estimated fair values of the assets acquired and the liabilities assumed. The excess of the cost over the fair value of the net assets acquired is $12,687 and is being amortized over a weighted average life of 37 years. During 2000, the company also completed the acquisitions of certain assets of Pioneer Holdings LLC, the outstanding shares of Beverage Equipment Supply Company and the remaining shares of Hangzhou Manitowoc Wanhua Refrigeration Company, the company's Chinese joint venture. The total aggregate consideration paid by the company for these acquisitions was $18,168, which is net of cash received and includes direct acquisition costs of $159 and assumed liabilities of $2,831. F-16 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The following unaudited proforma financial information for the years December 31, 2000 and 1999 assumes the 2000 acquisitions occurred as of January 1 of each year.
2000 1999 -------- ---------- Net sales............................................... $970,843 $1,005,381 Net earnings............................................ 60,859 72,702 Basic earnings per share................................ $ 2.45 $ 2.80 Diluted earnings per share.............................. 2.42 2.77
1999 On April 9, 1999, the company acquired all of the issued and outstanding shares of Kyees Aluminum, Inc., a leading supplier of cooling components for the major suppliers of fountain soft-drink beverage dispensers. The aggregate consideration paid by the company was $28,471 which is net of cash acquired of $1,010 and includes direct acquisition costs of $319, assumed liabilities of $2,151, and the payment of a post-closing net worth adjustment during the third quarter of 1999 of $1,263. Kyees' aluminum cold plates are a key component used to chill soft-drink beverages in dispensing equipment. Located in La Mirada, California, Kyees is a technology leader in manufacturing cold plate equipment, in both quality and engineering design. The acquisition of Kyees has been recorded using the purchase method of accounting. The cost of the acquisition has been allocated on the basis of the estimated fair values of the assets acquired and the liabilities assumed. The excess of the cost over the fair value of the net assets acquired of $24,073 is being amortized over a weighted average life of 38 years. On January 11, 1999, the company acquired all of the issued and outstanding shares of Purchasing Support Group LLC (PSG), a four-member beverage service organization. The new operation, renamed Manitowoc Beverage Systems, Inc. (MBS), provides full-service parts, components, and dispenser systems support to bottlers in the beverage industry. MBS is made up of companies that have been serving soft drink bottling operations throughout the United States since the 1960s with a variety of equipment services for beverage dispensing systems. MBS operates in the Northeast, Atlantic Coast, Southeast, Central and Western United States. The aggregate consideration paid by the company for the issued and outstanding shares of the four member companies of PSG was $43,686, which is net of cash acquired of $764 and includes direct acquisition costs of $538 and assumed liabilities of $5,912. The acquisition of MBS has been recorded using the purchase method of accounting. The cost of the acquisition has been allocated on the basis of the estimated fair values of the assets acquired and the liabilities assumed. The excess of the cost over the fair value of the net assets acquired is $34,019 and is being amortized over a weighted average life of 38 years. 1998 On November 3, 1998, the company acquired substantially all of the net assets and business of U.S. Truck Crane, Inc., (USTC), from a subsidiary of UK- based Powerscreen International PLC. Located in York, Pennsylvania, USTC builds three proprietary product lines, including boom trucks, rough terrain forklifts, and other types of material-handling equipment. The aggregate consideration paid by the company for the net assets of USTC was $51,478 which includes direct acquisition costs of $478, assumed liabilities of $7,425, and the receipt of a post-closing net worth adjustment in July 1999 of $2,053. F-17 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The acquisition of USTC has been recorded using the purchase method of accounting. The cost of the acquisition has been allocated on the basis of the estimated fair values of the assets acquired and the liabilities assumed. The excess of the cost over the fair value of the net assets acquired is $38,039, and is being amortized over a weighted average life of 38 years. The results of operations subsequent to the date of each of the aforementioned acquisitions have been included in the Consolidated Statements of Earnings for the years ended December 31, 2000, 1999, and 1998. 11. Contingencies The United States Environmental Protection Agency (EPA) has identified the company as a Potentially Responsible Party (PRP) under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), liable for the costs associated with investigating and cleaning up contamination at the Lemberger Landfill Superfund Site (the "Site") near Manitowoc, Wisconsin. Approximately 150 PRP's have been identified as having shipped substances to the Site. Eleven of the potentially responsible parties have formed a group (the Lemberger Site Remediation Group, or "LSRG") and have successfully negotiated with the EPA and the Wisconsin Department of Natural Resources to settle the potential liability at the Site and fund the cleanup. Recent estimates indicate that the remaining costs to clean up the Site are nominal; however, the ultimate allocations of cost for the Site are not yet final. Although liability is joint and several, the company's percentage share of liability is estimated to be 11% of the total cleanup costs. Prior to December 31, 1996, the company accrued $3,300 in connection with this matter. Expenses charged against this reserve during 2000, 1999 and 1998 were not significant. Remediation work at the Site has been completed, with only long- term pumping and treating of groundwater and Site maintenance remaining. The company's remaining estimated liability for this matter, included in other current and non-current liabilities at December 31, 2000, is $900. As of December 31, 2000, 32 product-related lawsuits were pending. All 32 cases are insured with self-insurance retentions of $1,000 for Crane accidents; $1,000 for Foodservice accidents occurring during 1990 to 1996; and $100 for Foodservice accidents occurring during 1997 to 2000. The insurer's contribution is limited to $50,000. Product liability reserves included in accounts payable and accrued expenses at December 31, 2000 are $8,432; $2,657 reserved specifically for the 32 cases referenced above, and $5,775 for claims incurred but not reported which were estimated using actuarial methods. The highest current reserve for an insured claim is $950. Based on the company's experience in defending itself against product liability claims, management believes the current reserves are adequate for estimated settlements on aggregate self-insured and insured claims. Any recoveries from insurance carriers are dependent upon the legal sufficiency of claims and the solvency of insurance carriers. It is reasonably possible that the estimates for environmental remediation and product liability costs may change in the near future based upon new information which may arise. Presently, there is no reliable means to estimate the amount of any such potential changes. The company is also involved in various other legal actions arising in the normal course of business. After taking into consideration legal counsels' evaluation of such actions, in the opinion of management, ultimate resolution is not expected to have a material adverse effect on the consolidated financial statements of the company. F-18 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 12. Retirement and Health Care Plans The company provides retirement benefits through noncontributory deferred profit sharing plans covering substantially all employees. Company contributions to the plans are based upon formulas contained in such plans. The company also has a defined contribution plan in which the company matches 25% of participant contributions up to a maximum of 5% of a participant's compensation. Total costs incurred under these plans were $14,854, $14,271, and $12,909, in 2000, 1999 and 1998, respectively. The company also provides certain healthcare and death benefits for eligible retirees and their dependents. The benefits are not funded, but are paid as incurred. Eligibility for coverage is based on meeting certain years of service and retirement qualifications. These benefits may be subject to deductibles, co-payment provisions, and other limitations. The company has reserved the right to modify these benefits. The tables that follow contain the components of the periodic postretirement health and other benefits cost for 2000, 1999, and 1998, respectively, and the reconciliation of the change in the accumulated periodic postretirement health benefit obligation, from January 1, 1999, through December 31, 2000. Acquisition related changes presented in the table relate to the acquisition of Marinette Marine in November 2000. Benefit costs for Marinette Marine from November 20, 2000 to December 31, 2000 are not significant. The components of the periodic postretirement health benefit cost are as follows:
2000 1999 1998 ------ ------ ------ Service cost--benefits earned during the year........ $ 398 $ 395 $ 296 Interest cost on accumulated postretirement health benefit obligation.................................. 1,517 1,325 1,144 Amortization of actuarial gain....................... -- -- (127) ------ ------ ------ Net periodic postretirement health and other benefit cost........................................ $1,915 $1,720 $1,313 ====== ====== ======
The following is a reconciliation of the change in the accumulated periodic postretirement health benefit obligation from January 1, 1999, through December 31, 2000, and a reconciliation of the postretirement benefit obligation to the accrued amount at December 31, 2000 and 1999:
2000 1999 ------- ------- Benefit obligation, beginning of year...................... $19,091 $16,948 Service cost............................................. 398 395 Interest cost............................................ 1,517 1,325 Acquisition.............................................. 478 -- Participant contributions................................ 796 810 Actuarial loss........................................... 2,509 1,946 Benefits paid............................................ (2,589) (2,333) ------- ------- Benefit obligation, end of year............................ $22,200 $19,091 ------- ------- Status of the plan, unfunded............................... $22,200 $19,091 Unrecognized net (loss) gain............................... (1,689) 821 ------- ------- Accrued benefit, end of year............................... $20,511 $19,912 ======= =======
The health care cost trend rate assumed in the determination of the accumulated postretirement benefit obligation is 5%. Increasing the assumed health care cost trend rate by one percentage point in each year would increase the accumulated postretirement health benefit obligation by $3,195 at December 31, 2000, and the F-19 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) aggregate of the service and interest cost components of net periodic postretirement health benefit cost by $301 for 2000. Decreasing the assumed health care cost trend rate by one percentage point in each year would decrease the accumulated postretirement health benefit obligation by $2,624 at December 31, 2000, and the aggregate of the service and interest cost components of net periodic postretirement health benefit costs by $244 for 2000. The discount rate used in determining the accumulated postretirement health benefit obligation is 7.25% for 2000 and 1999. Marinette Marine sponsored a defined benefit pension plan in which substantially all of its salaried employees are participants. Benefits under the plan were based upon years of service and average compensation. The funding policy was to contribute to the plan an amount equal to the current service costs taking into consideration the amount deductible for federal income tax purposes. A summary of the funded status of the plan at December 31, 2000 follows: Benefit obligation................... $11,364 Fair value of plan assets............ 12,052 Funded status, overfunded............ 688 ------- Prepaid pension costs................ $ 2,286 =======
The assumptions utilized to determine the amounts above were: discount rate 7.75%; expected return on assets 9%; and rate of compensation increase 4%. The plan assets are primarily invested in government and corporate bonds and equity mutual funds. It is reasonably possible that the estimate for future retirement and health care costs may change in the near future due to changes in the health care environment or changes in interest rates which may arise. Presently, there is no reliable means to estimate the amount of any such potential changes. 13. Leases The company leases various property, plant and equipment. Terms of the leases vary, but generally require the company to pay property taxes, insurance premiums, and maintenance costs associated with the leased property. Rental expense attributable to operating leases was $8,533, $4,847, and $2,848 in 2000, 1999, and 1998, respectively. Future minimum rental obligations under noncancelable operating leases, as of December 31, 2000, are payable as follows: 2001.................................. $9,825 2002.................................. 8,612 2003.................................. 7,655 2004.................................. 6,404 2005.................................. 5,548 Thereafter............................ 16,124
14. Business Segments The company identifies its segments using the "management approach" which designates the internal organization that is used by management for making operating decisions and assessing performance as the source of the company's reportable segments. F-20 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The company has three reportable segments: Foodservice Equipment (Foodservice), Cranes and Related Products (Cranes), and Marine. Foodservice products consist primarily of commercial ice-cube machines; ice/beverage dispensers; walk-in and reach-in refrigerators and freezers; refrigerated undercounter and food preparation tables; private label residential refrigerators and freezers; backroom beverage equipment; and distribution services. Foodservice sells its products primarily in the United States, Europe, Southeast Asia, and in the Middle East. Foodservice products serve the lodging, restaurant, health care, convenience store and soft-drink bottling markets which are impacted by demographic changes and business cycles. Cranes products consist primarily of lattice-boom crawler cranes; truck- mounted hydraulic cranes; rough-terrain forklifts; and material handling equipment. Cranes also specializes in industrial machinery repair and rebuilding services as well as crane rebuilding and remanufacturing services. Cranes distributes its products primarily in North America (primarily the United States), Europe, Southeast Asia, and the Middle East. Cranes' operations serve the construction, energy and mining industries and are mainly impacted by the level of activities related to heavy construction, energy-related and infrastructure projects around the world. Marine provides ship-repair maintenance, conversion and construction services to foreign and domestic vessels operating on the Great Lakes. Marine is also a leading provider of Great Lakes and ocean-going mid-sized commercial, research and military vessels. Marine serves the Great Lakes maritime market consisting of both U.S. and Canadian fleets, inland waterway operators, and oceangoing vessels that transit the Great Lakes and St. Lawrence Seaway. The accounting policies of the segments are the same as those described in the summary of significant accounting policies except that certain expenses are not allocated to the segments. These unallocated expenses are corporate overhead, intangible asset amortization, interest expense and income taxes. The company evaluates segment performance based upon profit or loss before the aforementioned expenses. The company is organized primarily on the basis of products and is broken down into 19 business units. Eleven of the business units have been aggregated into the Foodservice Segment; four of the business units have been aggregated into the Cranes Segment; and four business units make up the Marine Segment. F-21 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Financial information relating to the company's reportable segments for the years ended December 31, 2000, 1999 and 1998 is as follows:
2000 1999 1998 -------- -------- -------- Net Sales: Foodservice equipment.......................... $425,080 $379,625 $319,457 Cranes and related products.................... 376,250 389,510 339,051 Marine......................................... 71,942 55,204 45,412 -------- -------- -------- Total........................................ $873,272 $824,339 $703,920 ======== ======== ======== Operating Income: Foodservice equipment.......................... $ 67,536 $ 70,233 $ 57,856 Cranes and related products.................... 65,791 68,501 52,201 Marine......................................... 9,339 7,712 7,311 General corporate.............................. (11,961) (10,782) (10,138) -------- -------- -------- Total........................................ 130,705 135,664 107,230 Amortization................................... (8,181) (7,392) (4,881) Depreciation................................... (9,872) (9,321) (9,729) -------- -------- -------- Total........................................ $112,652 $118,951 $ 92,620 ======== ======== ======== Capital Expenditures: Foodservice equipment.......................... $ 8,883 $ 8,974 $ 7,415 Cranes and related products.................... 2,883 3,536 2,945 Marine......................................... 1,481 1,165 1,174 General corporate.............................. 168 39 144 -------- -------- -------- Total........................................ $ 13,415 $ 13,714 $ 11,678 ======== ======== ======== Total Assets: Foodservice equipment.......................... $359,196 $314,982 $254,506 Cranes and related products.................... 171,867 165,974 178,470 Marine......................................... 75,757 10,162 7,023 General corporate.............................. 35,710 39,122 41,015 -------- -------- -------- Total........................................ $642,530 $530,240 $481,014 ======== ======== ========
Sales and long-lived asset information by geographic area as of and for the years ended December 31 are as follows:
Sales Long-Lived Assets -------------------------- ----------------- 2000 1999 1998 2000 1999 -------- -------- -------- -------- -------- United States..................... $793,843 $737,616 $625,227 $410,596 $331,758 Other North America............... 25,132 25,213 16,881 -- -- Europe............................ 17,375 32,246 36,917 5,468 5,479 Asia.............................. 17,393 11,174 12,920 2,959 2,005 Middle East....................... 5,479 2,113 5,610 -- -- Central & South America........... 4,873 4,073 1,949 -- -- Africa............................ 3,277 5,890 1,774 -- -- South Pacific & Caribbean......... 5,900 6,014 2,642 -- -- -------- -------- -------- -------- -------- Total........................... $873,272 $824,339 $703,920 $419,023 $339,242 ======== ======== ======== ======== ========
F-22 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Foreign revenue is based upon the location of the customer. Revenue from no single foreign country was material to the consolidated sales of the company. 15. Subsequent Event On March 4, 2001, Manitowoc submitted a binding offer to acquire the Potain cranes subsidiary of Groupe Legris Industries SA. The purchase price of the acquisition will be approximately $300 million (2.15 billion French francs), plus net cash at December 31, 2000, subject to an adjustment for net earnings of Potain for the period from January 1, 2001 to the closing date. The transaction is anticipated to be financed by a new pre-arranged banking facility, which is expected to include both senior and subordinated debt. The subordinated debt will be guaranteed by the company, including its 100% owned domestic subsidiaries (the "Guarantors"); such guarantees will be full and unconditional and joint and several. Non-domestic subsidiaries which will not be Guarantors are minor. There will be no significant restrictions on the ability of the company or any of the guarantor subsidiaries to obtain funds from its subsidiaries by dividend or loan. Completion of the transaction is contingent upon certain events, including receipt of applicable regulatory approvals, completion of notification and consultation process with the applicable works' council (labor union) and final acceptance of the offer by the seller. The transaction is currently expected to be finalized by the end of the second quarter of 2001. Potain, headquartered in Lyon, France, is a world leader in the design, manufacture, and supply of tower cranes for the building and construction industry. Potain reported sales of approximately $275 million for the year ended December 31, 2000. F-23 THE MANITOWOC COMPANY, INC. CONSOLIDATED STATEMENTS OF EARNINGS (Thousands of dollars, except share data)
For the Three Months Ended March 31, --------------------------- 2001 2000 ---------- ---------- (Unaudited) Earnings Net sales................... $ 229,351 $ 205,853 Costs and expenses: Cost of sales............. 173,321 150,136 Engineering, selling and administrative expenses.. 36,001 28,974 ---------- ---------- Total costs and expenses............... 209,322 179,110 ---------- ---------- Earnings from operations.... 20,029 26,743 Other income (expense): Interest expense.......... (4,096) (2,511) Other expenses, net....... (115) (371) ---------- ---------- Total................... (4,211) (2,882) ---------- ---------- Earnings before taxes on income..................... 15,818 23,861 Provision for taxes on income..................... 5,948 8,948 ---------- ---------- Net earnings................ $ 9,870 $ 14,913 ========== ========== Per Share Data Net earnings per share-- basic...................... $ 0.41 $ 0.58 Net earnings per share-- diluted.................... $ 0.40 $ 0.57 Dividends per share......... $ 0.075 $ 0.075 Weighted average shares outstanding--basic......... 24,262,313 25,850,072 Weighted average shares outstanding--diluted....... 24,543,198 25,997,317
The accompanying notes are an integral part of these financial statements. F-24 THE MANITOWOC COMPANY, INC. CONSOLIDATED BALANCE SHEETS (Thousands of dollars, except share data)
March 31, December 31, 2001 2000 ----------- ------------ (Unaudited) ASSETS Current Assets: Cash and cash equivalents........................... $ 8,186 $ 13,983 Marketable securities............................... 2,071 2,044 Accounts receivable................................. 71,730 88,231 Inventories......................................... 101,818 91,178 Other current assets................................ 10,827 7,479 Future income tax benefits.......................... 22,756 20,592 --------- --------- Total current assets.............................. 217,388 223,507 Intangible assets--net................................ 307,516 308,751 Other non-current assets.............................. 14,581 10,332 Property, plant and equipment--net.................... 102,297 99,940 --------- --------- Total assets...................................... $ 641,782 $ 642,530 ========= ========= LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Accounts payable and accrued expenses............... $ 145,996 $ 144,713 Current portion of long-term debt................... 270 270 Short term borrowings............................... 68,671 81,000 Product warranties.................................. 12,537 13,507 --------- --------- Total current liabilities......................... 227,474 239,490 Non-Current Liabilities: Long-term debt, less current portion................ 140,337 137,668 Postretirement health benefit obligations........... 20,481 20,341 Other non-current liabilities....................... 11,524 11,262 --------- --------- Total non-current liabilities..................... 172,342 169,271 Stockholders' Equity: Common stock (36,746,482 shares issued)............. 367 367 Additional paid-in capital.......................... 31,586 31,602 Accumulated other comprehensive loss................ (2,451) (2,569) Retained earnings................................... 342,513 334,433 Treasury stock, at cost (12,480,442 and 12,487,019 shares)............................................ (130,049) (130,064) --------- --------- Total stockholders' equity........................ 241,966 233,769 --------- --------- Total liabilities and stockholder's equity........ $ 641,782 $ 642,530 ========= =========
The accompanying notes are an integral part of these financial statements. F-25 THE MANITOWOC COMPANY, INC. CONSOLIDATED STATEMENTS OF CASH FLOW (Thousands of dollars)
For the Three Months Ended March 31, ------------------ 2001 2000 -------- -------- Cash Flows from Operations Net earnings............................................. $ 9,870 $ 14,913 Non-cash adjustments to income: Depreciation........................................... 2,893 2,523 Amortization of goodwill............................... 2,315 1,902 Amortization of deferred financing fees................ 45 169 Loss on sale of property, plant and equipment.......... 64 79 Changes in operating assets and liabilities excluding the effects of business acquisitions: Accounts receivable................................... 16,501 (14,807) Inventories........................................... (10,640) (3,170) Other current assets.................................. (3,349) (677) Non-current assets.................................... (7,125) 807 Current liabilities................................... 143 (768) Non-current liabilities............................... 360 141 -------- -------- Net cash provided by operations...................... 11,077 1,112 -------- -------- Cash Flows from Investing Purchase of temporary investments--net................... (27) (30) Business acquisitions--net of cash acquired.............. -- (30,694) Proceeds from sale of property, plant, and equipment..... 22 22 Capital expenditures..................................... (5,336) (4,853) -------- -------- Net cash used for investing.......................... (5,341) (35,555) -------- -------- Cash Flows from Financing Dividends paid............................................. (1,791) (1,957) Treasury stock purchased................................... -- (22,638) Proceeds (payments) on long-term borrowings................ 2,669 (11) Proceeds (payments) on short-term borrowings--net.......... (12,329) 67,201 -------- -------- Net cash (used for) provided by financing............ (11,451) 42,595 Effect of exchange rate changes on cash.................... (82) (10) -------- -------- Net increase (decrease) in cash and cash equivalents..... (5,797) 8,142 Balance at beginning of period............................. 13,983 10,097 -------- -------- Balance at end of period................................... $ 8,186 $ 18,239 ======== ======== Supplemental Cash Flow Information Interest paid............................................ $ 3,786 $ 1,920 Income taxes paid........................................ $ 2,632 $ 4,022
The accompanying notes are an integral part of these financial statements. F-26 THE MANITOWOC COMPANY, INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Thousands of dollars)
For the Three Months Ended March 31, --------------- 2001 2000 ------ ------- Net earnings.................................................... $9,870 $14,913 Other comprehensive income (loss): Hedging activities--net of income taxes (see Note 8).......... (211) -- Foreign currency translation adjustments...................... 329 (184) ------ ------- Total other comprehensive income (loss)......................... 118 (184) ------ ------- Comprehensive income............................................ $9,988 $14,729 ====== =======
The accompanying notes are an integral part of these financial statements. F-27 THE MANITOWOC COMPANY, INC. NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS For the Three Months Ended March 31, 2001 and 2000 (Thousands of dollars, except share and per share data or where otherwise indicated) 1. In the opinion of management, the accompanying unaudited condensed consolidated financial statements contain all adjustments necessary to present fairly the results of operations, cash flows and comprehensive income for the three months ended March 31, 2001 and 2000 and the financial position at March 31, 2001. The interim results are not necessarily indicative of results for a full year and do not contain information included in the company's annual consolidated financial statements and notes for the year ended December 31, 2000. The consolidated balance sheet as of December 31, 2000 was derived from audited financial statements, but does not include all disclosures required by generally accepted accounting principles. It is suggested that these financial statements be read in conjunction with financial statements and the notes thereto included in the company's latest annual report. All dollar amounts are in thousands throughout these notes, except where otherwise indicated. 2. The components of inventories at March 31, 2001 and December 31, 2000 are summarized as follows:
March December 31, 31, 2001 2000 -------- ------------ Components: Raw materials....................................... $ 34,881 $ 33,935 Work-in-process..................................... 38,316 32,914 Finished goods...................................... 50,487 45,880 -------- -------- Total inventories at FIFO costs..................... 123,684 112,729 Excess of FIFO costs over LIFO value................ (21,866) (21,551) -------- -------- Total inventories................................... $101,818 $ 91,178 ======== ========
Inventories are carried at lower of cost or market using the first-in, first-out (FIFO) method for 50% and 57% of total inventories at March 31, 2001 and December 31, 2000, respectively. The remainder of the inventories are costed using the lower of the last-in, first-out (LIFO) method. 3. The United States Environmental Protection Agency ("EPA") has identified the company as a potentially responsible party ("PRP") under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), liable for the costs associated with investigating and cleaning up contamination at the Lemberger Landfill Superfund Site (the "Site") near Manitowoc, Wisconsin. Approximately 150 PRP's have been identified as having shipped substances to the Site. Eleven of the potentially responsible parties have formed a group (the Lemberger Site Remediation Group, or LSRG) and have successfully negotiated with the EPA and the Wisconsin Department of Natural Resources to settle the potential liability at the Site and fund the cleanup. Recent estimates indicate that the remaining costs to clean up the Site are nominal. However, the ultimate allocations of cost for the Site are not yet final. Although liability is joint and several, the company's percentage share of liability is estimated to be 11% of the total cleanup costs. Prior to December 31, 1996, the company accrued $3.3 million in connection with this matter. Expenses charged against this reserve for the quarters ended March 31, 2001 and 2000 were not significant. Remediation work at the Site has been completed, with only long-term pumping and treating of ground water and Site maintenance remaining. The remaining estimated liability for this matter, included in other current and noncurrent liabilities at March 31, 2001, is $0.9 million. F-28 THE MANITOWOC COMPANY, INC. NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued) As of March 31, 2001, various product-related lawsuits were pending. All of these cases are insured with self-insurance retentions of $1.0 million for Crane accidents; $1.0 million for Foodservice accidents occurring during 1990 to 1996; and $0.1 million for Foodservice accidents occurring during 1997 to 2001. The insurer's contribution is limited to $50.0 million. Product liability reserves included in accounts payable and accrued expenses at March 31, 2001 were $8.5 million; $2.7 million is reserved specifically for the cases referenced above and $5.8 million is reserved specifically for claims incurred but not reported which were estimated using actuarial methods. The highest current reserve for an insured claim is $0.9 million. Based on the company's experience in defending itself against product liability claims, management believes the current reserves are adequate for estimated settlements on aggregate self-insured and insured claims. Any recoveries from insurance carriers are dependent upon the legal sufficiency of claims and the solvency of insurance carriers. It is reasonably possible that the estimates for environmental remediation and product liability costs may change in the near future based upon new information that may arise. Presently, there is no reliable means to estimate the amount of any such potential changes. The company is also involved in various other legal actions arising in the normal course of business. After taking into consideration legal counsel's evaluation of such actions, in the opinion of management, ultimate resolution is not expected to have a material adverse effect on the consolidated financial statements of the company. 4. The company currently has the board of directors' authorization to repurchase up to 2.5 million shares of common stock at management's discretion. As of March 31, 2001, the company had purchased approximately 1.9 million shares at a cost of $49.8 million pursuant to this authorization. There were no common stock repurchases made during the first quarter of 2001. In February 2001, the board of directors adopted a resolution to pay cash dividends annually rather than quarterly. Thus, in October 2001, and at its regular fall meeting each year thereafter, the board of directors will determine the amount and timing of the annual dividend for that year. 5. The following is a reconciliation of the weighted average shares outstanding used to compute basic and diluted earnings per share.
Quarter Ended Quarter Ended March 31, 2001 March 31, 2000 -------------------- -------------------- Per Share Per hare Shares Amount Share Amount ---------- --------- ---------- --------- Basic EPS........................ 24,262,313 $ 0.41 25,850,072 $ 0.58 Effect of Dilutive Securities-- Stock Options................... 280,885 (0.01) 147,245 (0.01) ---------- ------ ---------- ------ Diluted EPS...................... 24,543,198 $ 0.40 25,997,317 $ 0.57 ========== ====== ========== ======
6. On May 9, 2000, The Manitowoc Company, Inc. ("Manitowoc") acquired from Legris Industries SA ("Legris") all of the outstanding capital stock of Potain SA, pursuant to a Share Purchase Agreement, dated May 9, 2001, among Manitowoc, Manitowoc France SAS and Legris (the "Acquisition"). The total purchase price for the Acquisition was FRF 2.3 billion (U.S. $307.1 million, based upon exchange rates as of May 7, 2001). The purchase price paid by Manitowoc was determined on the basis of arm's length negotiations between the parties. There is no material relationship between Legris and Manitowoc or any of its affiliates, directors or officers or any of their associates. This acquisition was financed through the company's $475 million credit facility and the issuance of the company's 10 3/8% Senior Subordinated Notes due 2011 in the aggregate principal amount of (euro) 175 F-29 THE MANITOWOC COMPANY, INC. NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued) million (U.S. $156 million, based upon exchange rates as of May 7, 2001). See Management's Discussion and Analysis of Financial Condition and Results of Operations for a summary of the terms of the credit facility and the 10 3/8% Senior Subordinated Notes due 2011, both of which were completed on May 9, 2001. Founded in 1928, Potain is considered a technology leader in the tower crane market with a long history of product innovations and patents. The company manufactures a variety of tower cranes, including top slewing, luffing jib, topless, and self-erecting units, plus special models for dams and other large building projects. The company employs approximately 2,200 people and has sold more than 88,000 cranes worldwide. Potain operates eight manufacturing facilities for tower cranes and related products in France, Germany, Italy, Portugal and China, and is active in more than 50 countries through distribution subsidiaries or agents. On April 24, 2001, the assets of Kern Electric were acquired by the Manitowoc Marine Group. The final acquisition price was $0.4 million. Kern Electric, located in Toledo, Ohio, will be managed and operated from the company's Toledo Shiprepair location and will be recognized as the "Manitowoc Electrical Service Division" within the Marine Group. Kern adds electrical capabilities for both the company's marine and industrial operations, provides an expanded customer base, fills a service void, and will allow us additional opportunities for turnkey, automation, and capital projects. 7. The company determines its segments based upon the internal organization that is used by management to make operating decisions and assess performance. Based upon this approach, the company has three reportable segments: Foodservice Equipment (Foodservice), Cranes and Related Products (Cranes), and Marine Operations (Marine). Information about reportable segments and a reconciliation of total segment sales and profits to the consolidated totals for the quarters ending March 31, 2001 and 2000 are summarized in "Management's Discussion and Analysis of Financial Condition and Results of Operations." As of March 31, 2001 and December 31, 2000, the total assets by segment were as follows:
March December 31, 31, 2001 2000 -------- ------------ Foodservice.......................................... $372,115 $359,196 Cranes............................................... 156,868 171,867 Marine............................................... 77,277 75,757 General corporate.................................... 35,522 35,710 -------- -------- Total................................................ $641,782 $642,530 ======== ========
8. As of January 1, 2001 the company adopted Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative Instruments and Hedging Activities." This statement requires all derivative instruments to be recorded on the balance sheet as assets or liabilities, at fair value. Changes in the fair value of derivatives are recorded each period in current earnings or comprehensive income, depending on whether a derivative is designated and qualifies as part of a hedge transaction and if so, the type of hedge transaction. The company enters into interest rate swap agreements to reduce the impact of changes in interest rates on its floating rate debt. As of March 31, 2001 the company had outstanding one interest rate swap agreement with a financial institution, having a total notional principal amount of $12.5 million and expiring October 2002. The interest rate swap is designated as cash flow hedge instrument based upon the F-30 THE MANITOWOC COMPANY, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) criteria established by SFAS No. 133. For a derivative designated as a cash flow hedge, the effective portion of the derivative's gain or loss due to a change in fair value is initially recorded as a component of other comprehensive income and subsequently reclassified into earnings when the hedged exposure affects earnings. During the period ended March 31, 2001, the cash flow hedge was deemed to be fully effective. The cumulative effect of adopting SFAS No. 133 as of January 1, 2001 was insignificant. The impact of SFAS No. 133 during the quarter ended March 31, 2001 resulted in a net loss, recognized in comprehensive income, of approximately $0.2 million. F-31 REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE To the Board of Directors of The Manitowoc Company, Inc. and Subsidiaries Our audits of the consolidated financial statements referred to in our report dated January 26, 2001, except for information in Note 15, for which the date is March 4, 2001, on page F-2 also included an audit of the information as of and for each of the three years ended December 31, 2000 set forth in the Financial Statement Schedule included herein. In our opinion, the Financial Statement Schedule presents fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. PricwaterhouseCoopers LLP Milwaukee, Wisconsin January 26, 2001 F-32 THE MAINTOWOC COMPANY, INC. Schedule II--Valuation and Qualifying Accounts (in thousands)
Balance Charged Balance at to Costs At End Beginning and Deductions of Description of Period Expenses (1) Period ----------- --------- -------- ---------- ------- Allowance for losses--trade accounts receivable December 31, 1998....................... $1,882 $ 482 $ (708) $1,656 ====== ====== ======= ====== December 31, 1999....................... $1,656 $2,221 $(2,074) $1,803 ====== ====== ======= ====== December 31, 2000....................... $1,803 $2,120 $ (886) $3,037 ====== ====== ======= ======
- -------- (1) Deductions represent bad debts written-off, net of recoveries. F-33 POTAIN SA REPORT OF INDEPENDENT AUDITORS To the Board of Directors of Potain SA We have audited the accompanying consolidated balance sheets of Potain Group as of December 31, 2000 and 1999, and the related consolidated statements of income and cash flows for the years then ended, which have been prepared on the basis of accounting principles generally accepted in France. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Potain Group at December 31, 2000 and 1999, and the consolidated results of its operations and its cash flows for the years then ended in conformity with accounting principles generally accepted in France which differ in certain respects from those generally accepted in the United States (see Note IV to the financial statements). Ernst & Young Audit Daniel Mary-Dauphin April 19, 2001 F-34 POTAIN SA CONSOLIDATED STATEMENTS OF INCOME December 31, 2000 and 1999
Note 12/31/2000 12/31/1999 ---- ---------- ---------- (in thousands Euros) Operating revenues Sales...................... 1 286,974 239,644 Other operating revenues... 2 33,018 29,870 Operating expenses Raw material, supplies and services.................. (185,935) (160,748) Payroll expenses........... 3 (69,276) (64,204) Other operating expenses... 4 (32,504) (30,119) -------- -------- Current operating income... 32,277 14,443 ======== ======== Non recurring operating income (expenses)......... 5 (553) (343) -------- -------- Operating income........... 31,724 14,100 -------- -------- Interest expense, net...... 6 868 (1,408) Amortization of goodwill, net....................... (429) (391) Other income and (expense), net....................... 7 (564) 0 -------- -------- Income before taxes........ 31,599 12,301 ======== ======== Income taxes, current and deferred.................. 8 (11,559) (4,433) -------- -------- Net income before minority interests of fully consolidated entities..... 20,040 7,868 ======== ======== Minority interests......... 14 24 1,592 Results of entities accounted for by the equity method............. 0 (4) -------- -------- Net income................. 20,016 6,272 ======== ======== Number of shares at December 31............... 909,945 909,945 Net income per share (in euros).................... 22.0 6.9
F-35 POTAIN SA CONSOLIDATED BALANCE SHEETS December 31, 2000 and 1999
Note 12/31/2000 12/31/1999 ---- ---------- ---------- (in thousands Euros) ASSETS Intangible assets.................................... 7,241 6,850 Goodwill............................................. 2,616 2,075 Property, plant and equipment........................ 62,421 59,902 Financial assets..................................... 3,197 3,941 ------- ------- Total Fixed Assets............................... 9 75,475 72,768 ======= ======= Inventories.......................................... 10 60,070 48,722 Accounts receivable.................................. 11 81,743 76,577 Other receivables.................................... 36,788 9,977 Cash................................................. 12 16,637 14,949 ------- ------- Total Current Assets............................. 195,238 150,225 ======= ======= Deferred tax assets.................................. 13 2,147 7,546 ------- ------- Total Assets..................................... 272,860 230,539 ======= ======= LIABILITIES Share capital........................................ 13,649 13,649 Additional paid-in capital........................... 12,495 12,495 Retained earnings.................................... 93,869 84,833 Net income for the year.............................. 20,016 6,272 Translation adjustment............................... (857) 834 ------- ------- Shareholders' Equity............................... 139,172 118,083 ======= ======= Minority interests................................... 93 5,624 ------- ------- Shareholders' Equity & Minority Interests.......... 14 139,265 123,707 ======= ======= Reserves for losses and contingencies.............. 15 12,535 7,260 Borrowings........................................... 16 23,316 12,940 Accounts payable..................................... 17 84,311 70,843 Other liabilities.................................... 7,070 8,522 ------- ------- Total Liabilities................................ 114,697 92,305 ======= ======= Deferred tax liabilities............................. 13 6,363 7,267 ------- ------- Total Liabilities & Shareholders' Equity......... 272,860 230,539 ======= =======
F-36 POTAIN SA CONSOLIDATED STATEMENTS OF CASH FLOW December 31, 2000 and 1999
Note 12/31/00 12/31/99 ---- -------- -------- (in thousands Euros) Cash Flows from Operations.............................. 18 31,088 19,648 Change in working capital............................... (5,160) 1,748 Cash Flows from Operating Activities.................... 25,928 21,396 (Increase)/decrease in fixed assets (excluding rented equipment)........................................... (8,035) (6,309) (Increase)/decrease in rented equipment............... (5,495) (4,927) Investing activities.................................. 4,722 227 ------ ------- Total Cash Used in Investing Activities............. (8,808) (11,009) ====== ======= Financing Activities.................................... (489) (17) Exchange rate fluctuation............................. (679) (514) (Increase) Decrease in Net Indebtedness................. 15,952 9,856
F-37 POTAIN SA NOTES TO CONSOLIDATED FINANCIAL STATEMENTS YEAR ENDED DECEMBER 31, 2000 AND 1999 I--KEY EVENTS 1--Purchase of the minority interests of Zhangjiagang Potain An agreement was negotiated in 1999 and finalized in early 2000 under which Potain acquired the minority interest in its joint venture in China. All items affecting earnings, including planned restructuring expense, appear in 1999 financial statements. 2--Acquisition of the Liftlux business The group created Liftlux Potain GmbH as of July 1st, 2000, in connection with the acquisition of the Liftlux assets. This company was included in the consolidation in 2000. 3--Application of the new French regulation for the consolidated financial statements Potain group accounting principles were changed in 2000 in order to include the effects of the new R99-02 regulation. The effective application of this new regulation induced: . the full consolidation of B.P.G.R. S.A.R.L., previously accounted for by the equity method, . the full consolidation of Solum Grundstuck Vermietung GmbH and Axiome de Re, entities being considered as controlled by Potain SA, previously not included in consolidation, . the accounting for part of pensions and similar benefits for France and Portugal employees, which were previously considered as fully covered by the insurance premiums paid and expensed when paid, . the accounting for deferred tax (a) considering deferred tax assets on all existing tax losses, (b) considering deferred tax on a purchase accounting and (c) netting the deferred tax assets and liabilities positions of each subsidiary, with (d) adequate valuation allowance when necessary of the net assets. As a consequence of the above modifications, the movements in equity between December 31, 1999 and December 31, 2000 include: . the first consolidation of Axiome de Re, increasing net equity by an amount of 676 K(Euro) . the partial accounting for the first year of pensions and similar benefits, increasing net equity by 390 K(Euro) The income statement of year 2000 is impacted by the December 31, 1999 effect of the new deferred tax accounting method. It represents a deferred tax benefit of K(Euro).547. II--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES 1--General principles The consolidated financial statements as of December 31, 2000 are prepared in accordance with accounting principles generally accepted in France, as stated in the R99-02 regulation issued by the "Comite de Reglementation Comptable", the regulatory authority for accounting in France, and comply with: . the Law dated January 3, 1985 . the ministerial decree dated February 17, 1986 . methodology of the C.R.C. (June 22, 1999 decision enacting the 99.02 regulation of the C.R.C.) F-38 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 2--Consolidation principles The consolidated financial statements include the financial statements of all significant companies directly or indirectly controlled by Potain SA. All companies included in the scope of consolidation are fully consolidated, with the exception of B.P.G.R. in 1999, which was consolidated by the equity method. The financial year of all consolidated companies ends on December 31. A full list of consolidated companies appears in Note 21 to consolidated financial statements. A full list of non-consolidated entities is presented in Note 6 hereafter. 3--Foreign currency translation The financial statements of foreign subsidiaries are translated into euros at year-end exchange rates for their assets and liabilities and at weighted average exchange rates for the year for their income statement. Resulting translation adjustments are recorded to shareholders' equity. 4--Intangible assets & goodwill Internally generated goodwill, start-up costs and research and development costs are expensed as incurred. Significant software costs are amortized using the straight-line method over the estimated useful life of the software, which may not exceed three years. Patents, trademarks and licenses are amortized over 20 years. Goodwill on first consolidation consists of costs in excess of net assets of acquired businesses. It is amortized on a straight-line basis over 15 years. 5--Property, plant and equipment Property, plant and equipment are stated at historical acquisition or production cost. Maintenance and repair costs, other than those intended to extend the life of an asset, are expensed when incurred. Leased equipment is recorded as an asset when the terms of the lease are those of a capital lease. Depreciation is calculated on a straight-line basis over the following estimated useful lives: Buildings and improvements................................. 20 to 25 years Machinery and equipment.................................... 5 to 10 years Leased cranes.............................................. 6 to 8 years Others..................................................... 3 to 10 years
6--Financial assets Financial assets mainly include investments in non-consolidated entities and housing contribution loans. The housing contribution loans are non-interest bearing loans over 20 years. They are recorded at discounted value, assuming a 2% interest rate per year. Subsidiaries with low materiality (less than 0.6 million (Euro) sales or total balance sheet) are not included in the consolidation. F-39 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Investments in non-consolidated companies are stated at cost and written down when economic value falls below cost. The list of non-consolidated entities as of December 31, 2000 is as follows:
Net share Non-consolidated entities % ownership value Equity ------------------------- ----------- -------- -------- Potain Ireland.............................. 51,0% 0 KEUR 10 Potain Inc (Philippines).................... 70,0% KEUR 249 KEUR 698 Potain Pty (Australia)...................... 100,0% KEUR 2 KEUR 596 SCI Les Aulnettes (France).................. 100,0% KEUR 155 KEUR 20
7--Inventories and work in progress Inventories of all group companies are stated at lower of cost or market. Cost is defined as acquisition or production cost and is computed using the weighted average cost method. Production costs include direct and indirect production costs and an allocation of overheads assuming normal levels of activity. Intercompany margins are eliminated. Intercompany goods in transit are included both in inventories and purchases of the receiving company. Allowances to write down inventories to their net realizable value and for surplus inventories are recorded in the year in which they become known. 8--Receivables Receivables are stated at their nominal value and provisions are recorded when appropriate to cover any risk of non-recovery. 9--Other accounts receivables and other liabilities The Potain group is owned by Legris Industries. In connection therewith, the management of excess cash or cash requirements is done at Legris level through a cash pooling agreement. The cash lended to the cash pooling is recorded as other accounts receivable respectively for 4,159 K(Euro) and 28,539 k(Euro) as of December 31, 1999 and 2000. The cash borrowed from the cash pooling is recorded as other liabilities respectively for 3,842 K(Euro) and 3,582 k(Euro) as of December 31, 1999 and 2000. 10--Social contributions Potain SA benefits since 1997 from the "De Robien" social law, which enables the company to pay reduced social contributions over the seven-year period ending June 30, 2003, provided that Potain SA keeps a minimum headcount level. Related benefits are recorded on the respective years and represented respectively (Euro)2,871 and (Euro)2,865 for 1999 and 2000. 11--Transactions in foreign currencies Monetary assets and liabilities denominated in foreign currencies that are not hedged are translated at year-end exchange rates. Hedged foreign currency transactions are translated at the hedging rate. Differences arising from translation, together with gains and losses realized on transactions carried out during the year, are included in income statement. The potential differences arising from fair value of the hedging positions related to the backlog orders are considered as off-balance sheet commitments. F-40 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 12--Taxation Tax charged to earnings corresponds to the tax due from each taxable consolidated entity after correction of deferred taxes. The company uses the deferral method to recognize deferred tax assets and liabilities for the expected future income tax consequences of events that have been recognized in the company's financial statements. Under this method, deferred tax assets and liabilities are determined based on the temporary differences between financial statements carrying amounts and the tax basis of assets and liabilities. The deferred tax liability on the restatement of the "Foreign Investment reserve" is recorded at its discounted value assuming a 5% rate. Where taxable entities show a loss, the deferred tax assets recorded for loss carry forwards were limited until December 31, 1999 to the losses over two financial years. This is no longer applicable beginning in 2000, under the new enacted 99-02 French GAAP. Deferred tax assets on loss carry forwards and deemed deferred depreciation are fully depreciated if their application to future earnings is uncertain. 13--Pensions and similar benefits Commitments to employees relating to retirement, or seniority bonuses, or other deferred benefits, are partly accrued for since 2000 in accordance with generally accepted accounting principles in France. The overall impact of this change of method on shareholders' equity on the opening balance sheet is not significant, amounting to (Euro)0.39 million, and does not require the presentation of pro forma accounts. The accrual recorded in the consolidated financial statements, K(Euro)4,989, does not take into account the preferred method for computation of the full commitment. The schedule below shows the assumptions used for valuation of the liability:
Assumptions As computed under IAS 19 ----------- ------------------------ Retirement age...................... 60 for executive and 63 for employees Type of departure................... Voluntary Discount rate....................... 4.9% (incl. inflation) Inflation rate...................... 2% Social contributions................ 47% Salary increase..................... Depends on age & category Turnover............................ Depends on age & category Commitment.......................... K(Euro) 9,123
Out of the K(Euro)9,123, K(Euro)1,073 were paid to an external insurance company. F-41 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) III--NOTES TO FINANCIAL STATEMENTS (in thousands Euros) 1--SALES
By business 2000 1999 ----------- ------- ------- Cranes.................................................... 286,974 239,644 ------- ------- Total................................................... 286,974 239,644 ======= ======= By geographic area 2000 1999 ------------------ ------- ------- France.................................................... 83,021 70,097 Europe (excl France and Eastern Europe)................... 159,812 138,283 Asia--Pacific............................................. 16,485 11,864 America................................................... 13,260 8,322 Near and middle East...................................... 5,236 4,210 Africa.................................................... 4,130 2,190 Eastern Europe............................................ 5,028 4,680 ------- ------- Total................................................... 286,974 239,644 ======= ======= 2--OTHER OPERATING REVENUES 2000 1999 ------- ------- Change in inventory....................................... 1,113 4,652 Capitalized production.................................... 14,476 10,589 Operating subsidies....................................... 103 151 Reversals of accruals, expense transfers.................. 4,327 5,097 Other revenues (1)........................................ 13,000 9,392 ------- ------- Total................................................... 33,018 29,870 ======= ======= - -------- (1)including sale of capitalized rented cranes 11,277 8,015
3--PAYROLL EXPENSES
2000 1999 ------- ------- Wages and salaries...................................... (52,938) (48,190) Social security contributions........................... (16,338) (16,014) ------- ------- Total................................................. (69,276) (64,204) ======= =======
Headcounts average 2000 12/31/00 12/31/99 ---------- ------------ -------- -------- Cranes.................................. 2,464 2,285 2,558 ----- ------- ------- Total................................. 2,464 2,285 2,558 ===== ======= ======= - -------- (1)out of which Potain China headcounts: 397 231 616 4--OTHER OPERATING EXPENSES 2000 1999 -------- -------- Total................................. (32,504) (30,119) ======= ======= - -------- (1)out of which, net book value of sold rented cranes (7,058) (6,353)
F-42 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 5--NON RECURRING OPERATING INCOME (EXPENSES)
2000 1999 ------- ------ Non recurring operating expenses....................... (5,166) (5,545) Non recurring operating income......................... 4,613 5,202 Non recurring operating items.......................... (553) (343) 6--INTEREST EXPENSE, NET 2000 1999 ------- ------ Interest expense, net of interest income............... (514) (1,303) Net gains on disposal of short term investments........ 7 0 Subtotal............................................. (507) (1,303) Foreign exchange gains (losses)........................ 716 (325) Amortizations and provisions........................... (404) (212) Reversal of reserves and expense transfers............. 152 222 Other financial income (expense)....................... 912 210 ------- ------ Subtotal............................................. 1,375 (105) ======= ====== Interest expense, net.............................. 868 (1,408) 7--OTHER INCOME AND (EXPENSE) NET 2000 1999 ------- ------ Non operating expenses................................. (2,664) 0 Non operating income................................... 2,100 0 ------- ------ Non operating items.................................. (564) 0 ======= ====== 8--INCOME TAXES 8a--Detail 2000 1999 ------- ------ Current income tax..................................... (11,221) (5,380) Deferred income tax.................................... (338) 947 ------- ------ Total................................................ (11,559) (4,433) ======= ====== The total income tax charge can be analyzed as follows: Tax on operating income.............................. (11,559) (4,433) Decrease/(increase) in tax linked to non operating items............................................... ------- ------ Total.............................................. (11,559) (4,433) ======= ======
F-43 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 8b--Tax rationalization
2000 ------- --- Income before income taxes................................... 31,559 Corporate income tax rate.................................... 36.3% Theoretical tax charge....................................... (11,456) Impact of permanent differences --Potain China net loss.................................... (671) --Goodwill amortization.................................... (161) --Tax credit on previously not recognized tax losses....... 1,658 --Changes in income tax rate............................... (144) --Change in consolidation principles....................... (1,175) --Other.................................................... 390 ------- --- Effective tax charge......................................... (11,559) ======= ===
9--FIXED ASSETS 9a--Fixed assets, at cost and net
2000 1999 -------- -------- At cost: Intangible assets..................................... 12,403 10,204 Goodwill.............................................. 6,686 5,716 Property, plant & equipment........................... 159,846 153,509 Financial assets...................................... 3,774 3,070 Investments accounted for by the equity method........ 0 1,194 -------- -------- Total fixed assets at cost.......................... 182,709 173,693 ======== ======== Amortization/depreciation Intangible assets..................................... (5,163) (3,353) Goodwill.............................................. (4,070) (3,641) Property, plant & equipment........................... (97,424) (93,607) Financial assets...................................... (577) (323) Investments accounted for by the equity method........ 0 0 -------- -------- Total fixed assets depreciation/amortization........ (107,234) (100,925) ======== ======== Net book value Intangible assets..................................... 7,241 6,850 Goodwill.............................................. 2,616 2,075 Property, plant & equipment........................... 62,421 59,902 Financial assets...................................... 3,197 2,747 Investments accounted for by the equity method........ 0 1,194 -------- -------- Fixed assets, net................................... 75,475 72,768 ======== ========
9b--Movements in fixed assets
Gross Dep. Net ------- -------- ------- Value as of December 31, 1999................. 173,693 (100,925) 72,768 Acquisitions.................................. 26,037 (13,189) 12,848 Disposals..................................... (24,300) 7,091 (17,209) Other......................................... 7,279 (211) 7,068 ------- -------- ------- Value as of December 31, 2000............... 182,709 (107,234) 75,475 ======= ======== =======
F-44 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 9c--Assets acquired under capital leases
2000 1999 ------ ------ At cost................................................... 12,861 10,879 Depreciation.............................................. (5,546) (5,115) Net assets acquired under capital lease................... 7,315 5,764 ------ ------ Obligations under capital lease........................... 6,298 6,269 ------ ------
9d--Goodwill Goodwill at December 31, 1999.................................. 2,075 Exchange rate difference on amortization Acquisitions................................................... 970 Amortization................................................... (429) ----- --- Goodwill at December 31, 2000.................................. 2,616 ===== ===
Goodwill breakdown by companies
12/31/99 Net book Gross value Accumulated Depreciation Translat. value at 12/31/00 amortization For the year adjustment at 12/31/00 ----------- ------------ ------------ ---------- ----------- Potain Industria Spa.... 5,716 (3,641) (391) 1,684 Liftux Potain........... 970 (38) 932 ----- ------ ---- --- ----- Total................. 6,686 (3,641) (429) 0 2,616 ===== ====== ==== === =====
10--INVENTORIES
2000 1999 ------ ------ Raw materials and other supplies.......................... 23,166 15,642 Work in Process........................................... 21,338 16,879 Semi-finished and finished goods.......................... 12,167 14,491 Resale goods.............................................. 8,414 6,230 Inventories--gross value.................................. 65,085 53,242 Provision for decline in value............................ (5,015) (4,520) ------ ------ Inventories--net book value............................. 60,070 48,722 ====== ======
11--ACCOUNTS RECEIVABLES
2000 1999 ------ ------ Prepayments............................................. 211 397 Accounts receivables from customers..................... 82,966(1) 79,109 Other receivables....................................... 2,392 907 Gross trade accounts receivable......................... 85,569 80,413 Provision for depreciation.............................. (3,826) (3,836) ------ ------ Net trade accounts receivables........................ 81,743 76,577 ====== ======
- -------- (1) out of which receivables over 1 year : 0.5 Me F-45 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 12--CASH AND SHORT-TERM INVESTMENTS
2000 1999 ------ ------ Short term investments at cost..................... 11,544 0 Depreciation.............. 0 0 Short-term investment, net...................... 11,544 0 Cash...................... 5,093 14,949 Other..................... 0 0 Cash...................... 5,093 14,949 ------ ------ Total................... 16,637 14,949 ====== ====== 13--DEFERRED TAXES BALANCE AT YEAR-END 13a--Movements in deferred tax balances 2000 1999 ------ ------ Net opening deferred tax assets/liabilities....... 279 (705) Net deferred taxes........ (338) 947 Impact of deferred taxes on pensions & similar benefits................. (222) Impact of changes in consolidation area....... (3,979) Other changes............. 44 37 ------ ------ Net closing deferred tax assets/liabilities..... (4,216) 279 ====== ======
13b--Deferred tax analysis by sources of deferred tax (Presented before netting by company)
2000 ------------------------ Gross Dep. Net ------- ------ ------- Deferred tax assets arising from --Book to tax adjustments..................... 2,730 0 2,730 --Restatements of local books................. 3,942 (694) 3,248 --Tax losses and tax credits.................. 6,201 (5,276) 925 12,873 (5,970) 6,903 Deferred tax liabilities arising from --Book to tax adjustments..................... (5,556) 0 (5,556) --Restatements of local books................. (5,563) 0 (5,563) (11,119) 0 (11,119) ------- ------ ------- Total net................................... 1,754 (5,970) (4,216) ======= ====== =======
F-46 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 14--SHAREHOLDERS' EQUITY
Capital and Retained Net premiums earnings Income Other Total ----------- -------- ------ ----- ------- Shareholders' equity at December 31, 1999............. 115,843 7,864 123,707 Dividend distribution........ (497) (497) Capital increase............. Capital reduction............ Net income for the year........ 20,040 20,040 Translation adjustment....... 472 472 Acquisition of Potain China minority interests.......... (5,550) (5,550) Other........................ 1,092 7,367 (7,367) 1,092 ------- ----- ------ --- ------- Shareholders' equity at December 31, 2000............. 111,857 7,367 20,040 0 139,264 ======= ===== ====== === ======= Number of shares 1999......................... 909,945 2000......................... 909,945
15--RESERVE FOR LOSSES AND CONTINGENCIES
2000 1999 ------ ----- Reserve for contingencies Claims and litigations....................................... 520 438 Warranty costs(1)............................................ 2,582 2,440 Technical updates(2)......................................... 1,083 475 Technical and industrial risks............................... 518 517 Miscellaneous................................................ 860 433 Total...................................................... 5,563 4,303 Reserve for losses Pensions and other benefits(3)............................... 4,989 624 Restructuring................................................ 1,006 1,719 Initial assembly costs....................................... 121 171 Miscellaneous................................................ 857 433 Total........................................................ 6,972 2,957 ------ ----- Total...................................................... 12,535 7,260 ====== =====
- -------- (1) Contractual warranty on sold cranes (2) Covers the estimated cost of parts replacement initiated by the group (3) Change in accounting method for pensions and similar benefits accruals Corresponding value at December 31, 1999: 4,2 millions Euros F-47 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 16--BORROWINGS
2000 1999 ------ ------ 16a--Breakdown by nature Bank borrowings......................................... 16,831 6,542 Subordinated debts...................................... 0 65 Other................................................... 5,486 6,333 ------ ------ Total................................................. 23,317 12,940 ====== ====== 16b--Breakdown by maturity Less than 1 year........................................ 9,170 5,362 From 1 to 5 years....................................... 8,215 4,427 More than 5 years....................................... 5,931 3,151 ------ ------ Total*................................................ 23,316 12,940 ====== ====== *of which obligations under capital lease............... 6,298 6,269 16c--Financial instruments As of December 31, 2000, there is no interest rate hedging. 17--ACCOUNTS PAYABLE 2000 1999 ------ ------ Prepayments received.................................... 1,509 1,276 Trade accounts payable.................................. 51,543 46,086 Tax and social contributions payable.................... 20,273 18,113 Debt related to fixed assets............................ 299 676 Corporate income tax payable............................ 7,358 3,431 Other liabilities....................................... 3,328 1,262 ------ ------ Total accounts payable................................ 84,311 70,843 ====== ====== 18--CASH FLOWS FROM OPERATIONS 2000 1999 ------ ------ Consolidated net income................................. 20,039 7,864 Income from companies accounted for by the equity method................................................. 0 Depreciation, amortization and operating provisions..... 18,032 16,489 Reversals of operating provisions....................... (4,326) (4,988) Allowance for financial provisions...................... 404 212 Reversals of financial provisions....................... (152) (222) Allowance for non recurring provisions.................. 179 1,004 Reversals of exceptional provisions..................... (3,918) (246) Gains on disposal of fixed assets....................... 58 (408) Amortization of goodwill, net........................... 429 381 Net movement in deferred taxes.......................... 338 (947) ------ ------ Total cash flows from operations...................... 31,088 19,648 ====== ======
F-48 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 19--IMPACT OF CHANGES IN CONSOLIDATION SCOPE
2000 ------- Fixed assets............................................ 6,897 Current assets*......................................... 19,711 Deferred tax assets..................................... ------- Total assets.......................................... 26,608 ======= Equity.................................................. 7,646 Reserves................................................ 5,990 Liabilities*............................................ 8,993 Deferred tax liabilities................................ 3,979 ------- Total liabilities..................................... 26,608 ======= *of which, net borrowings............................... (10,984) 20--OFF-BALANCE SHEET COMMITMENTS 2000 1999 ------- ------ Given commitments Guaranties given to banks (incl. Discounted bills)...... 11,217 14,244 Future lease payments................................... 0 0 Buy-back commitments.................................... 14,253 11,682 Other................................................... 0 0 ------- ------ Total................................................. 25,470 25,926 ======= ====== Received commitments Discounted bills........................................ 1,358 631 Discounted bills secured by collateral/Sabatini law, Italy(1)............................................... 2,616 2,709 Backlog orders received................................. 52,537 55,796 Buy-back commitments.................................... 14,253 11,682 Other(2)................................................ 11,766 13,643 ------- ------ Total................................................. 82,530 84,461 ======= ====== Debts secured by collateral Mortgages and pledges................................... 0 0 Obligations under capital lease......................... 6,298 6,269 ------- ------ Total................................................. 6,298 6,269 ======= ======
-------- (1) guaranted by pledge on material (2) export guarantees, other guarantees, equipment lodged as collateral for payment guarantees given, excluding discounted bills F-49 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 21--CONSOLIDATION AREA
% % ownership ownership at at Entities City Country 31/12/2000 31/12/1999 - -------- ------------- ------------------ ---------- ---------- Potain.................. Ecully France Mother Mother B.P.G.R................. Ecully France 100.00% 100.00% Sam Sologat............. Bretigny France 99.80% 99.80% Sci Les Sthenes du Plateau................ Ecully France 100.00% 100.00% Cadillon GmbH........... Moerfelden Allemagne 100.00% 100.00% Potain GmbH............. Moerfelden Allemagne 100.00% 100.00% Potain Technik Gmbh..... Arneburg Allemagne 100.00% 100.00% Potain Belgium.......... Malines Belgique 100.00% 100.00% Potain UK............... West-Drayton Grande-Bretagne 100.00% 100.00% Potain Hungaria......... Budapest Hongrie 100.00% 100.00% Potain Industrie Spa.... Niellatanaro Italie 99.98% 99.98% Potain Spa.............. Parabiago Italie 99.97% 99.97% Potain Italia........... Cuggiono Italie 99.97% 99.97% Potain International.... Cuggiono Italie 99.97% 99.97% Potain Polska........... Varsovie Pologne 100.00% 100.00% Noe Pereira............. Fanzeres Portugal 99.64% 99.64% Potain Portugal......... Ermesinde Portugal 99.56% 99.56% Potain S.R.O............ Netvorice Republique tcheque 100.00% 100.00% Potain Corporation...... Miami Etats-Unis 100.00% 100.00% Potain Ltda............. Sao-Paulo Bresil 99.91% 99.91% Zhangjiagang Potain..... Zhangjiagang Chine 100.00% 62.77% Potain Pte Ltd.......... Singapour Singapour 100.00% 100.00% Liftlux Potain Gmbh..... DILLINGEN Allemagne 100.00% Solum................... Dusseldorf Allemagne 100.00% Axiome de Re............ Senningerberg Luxembourg 100.00%
F-50 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) IV--PROFIT AND LOSS PRESENTATION Under French accounting principles, profit and loss statement can be presented either by nature or by destination. Below is a presentation of profit and loss statement by destination under French GAAP.
(in thousands Euros) 12/31/2000 (12/31/1999 - -------------------- ---------- ----------- Sales.................................................. 286,974 239,644 Cost of sales.......................................... (206,503) (182,032) Gross profit........................................... 80,471 57,612 Engineering, selling & administrative expenses......... (48,747) (43,512) Operating profit....................................... 31,724 14,100 Interest expense, net.................................. 868 (1,408) Goodwill amortization.................................. (429) (391) Other income and (expense), net........................ (564) 0 Income before taxes.................................... 31,599 12,301 Income tax............................................. (11,559) (4,433) Net income before minority interests of fully consolidated entities................................. 20,040 7,868 Minority interests..................................... 24 1,592 Results of entities accounted for by the equity method................................................ 0 (4) Net income............................................. 20,016 6,272
The cost of sales includes the following: . logistic expenses such as inventory warehousing and transportation costs, . manufacturing costs including direct and indirect standard costs, variances with actual costs and allowances for inventory depreciation, . margin on sale of capitalized cranes. Engineering, selling & administrative expenses include all operating expenses not included in cost of sales. V--COMPARISON BETWEEN FRENCH AND UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES The Group's consolidated financial statements are prepared in accordance with accounting principles generally accepted in France ("French GAAP") which differ in certain respects from accounting principles generally accepted in the United States ("U.S. GAAP"). The significant differences applicable to the Group are summarized below. Revenue recognition on sales with guaranteed buyback commitments Under French GAAP, revenue related to sales with guaranteed buyback commitments are recognized and a liability is established at the time of sale for the difference, if any, between the amount of the buyback commitment and the estimated fair value of the equipment at the foreseeable buyback commitment date. Under U.S. GAAP, revenue related to such sales is recorded in accordance with EITF 95-1, "Revenue Recognition on Sales with Guaranteed Minimum Resale Value" which states that a manufacturer is precluded from recognizing a sale of equipment if the manufacturer guarantees the resale value of the equipment to the F-51 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) purchaser. Rather, the manufacturer should account for the transaction as a lease, using the principles of lease accounting in Statement 13. Revenue recognition on sales with guarantees The Company enters into sales agreements with financing companies who in turn lease equipment to third parties. Under some of these agreements, the Company has guaranteed the third party lease payments to the financing companies. Under other such agreements, the Company has agreed to absorb a portion of the losses resulting from default by the third parties. Under French GAAP, revenue related to such transactions is recorded upon delivery of the equipment and a liability, if necessary, is established for any anticipated future losses related to the guarantees. The guarantees are considered to be off-balance sheet commitments. Under U.S. GAAP, revenue related to such transactions in which the Company retains substantial risks of ownership in the property is recorded as if the transaction was a lease. Deferred taxation For French GAAP purposes, on January 1, 2000, the Group adopted French accounting standard 99-02 which addresses the accounting for income taxes. This new rule is effective from January 1, 2000. This standard is similar to U.S. GAAP in that deferred taxes are computed for all temporary differences between the tax and book bases of assets and liabilities. Deferred tax assets are recognized to the extent their realization is more likely than not. The main difference between this standard and U.S. GAAP is that long-term deferred tax liabilities are discounted. For U.S. GAAP purposes, deferred taxes are computed for all temporary differences between the tax and book bases of assets and liabilities. Deferred tax assets are recognized to the extent their realization is more likely than not. Consolidation and tax provisions Under French GAAP, prior to the issuance of accounting standard 99-02, companies were not required to consolidate majority-owned subsidiaries which operated in a different business activity. Therefore, Axiome, a wholly-owned subsidiary was not consolidated in 1998 and 1999 as a result of which provisions recorded to obtain certain tax benefits were not reversed for consolidation purposes under French GAAP. Starting from January 1, 2000, the application of accounting standard 99-02 requires that all majority-owned subsidiaries for which a company has control be consolidated and as a consequence, such provisions have been reversed. Under U.S. GAAP, all majority-owned subsidiaries for which a company has control are consolidated and as a consequence, provisions recorded to obtain certain tax benefits are reversed all over the periods presented with the related deferred tax effect. Pensions and retirement indemnities Under French GAAP, companies have the option of recording pension liabilities in full in the balance sheet, partially in the balance sheet and partially as an off balance sheet commitment, or entirely as an off balance sheet commitment. Under U.S. GAAP, pensions are accounted for in accordance with Statement of Financial Accounting Standards No. 87, "Employers' Accounting for Pensions" (FAS 87). Under FAS 87, pension assets or liabilities are recorded in the balance sheet for the difference between the projected benefit obligation and the fair value of any plan assets. Annual pension costs are recorded in the income statement. F-52 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) IBNR Reserves For French GAAP purposes, liabilities for amounts due related to deductibles for insurance claims are recorded when the invoices are received from the insuror. For U.S. GAAP purposes, such liabilities are recorded when they are incurred. Therefore, an estimate of claims incurred but not yet reported (IBNR) is calculated by an actuary and the estimated amount is recorded in the balance sheet. Foreign currency hedges Under French GAAP, gains and losses on foreign currency hedges can be deferred until the hedged transaction actually occurs. Under U.S. GAAP, hedging of foreign currency transactions with forward exchange contracts is only permissible for transactions which are firm commitments. Some of the Group's foreign currency contracts hedge forecasted or budgeted transactions which do not meet the definition of a firm commitment. Gains and losses on these contracts cannot be deferred but must be recognized in net income. Restructuring costs For French GAAP purposes, the Group recorded a restructuring reserve for Potain China in December 1999 because it was considered that management had approved the plan and communicated the plan and related benefits to be received to the employees affected by the plan. However, the plan was not officially approved by the Board and other regulatory authorities until January 2000. For U.S. GAAP purposes, restructuring costs are recognized when the following have occurred: management approves and commits the company to the restructuring plan; the benefit arrangement for any employees to be terminated has been communicated to employees in sufficient detail to enable them to determine the type and amount of benefits they will receive if terminated; the plan of termination specifically identifies the number of employees to be terminated, their job classifications or functions and their locations; and the period of time to complete the plan indicates that changes to the plan are not likely. It was considered for U.S. GAAP purposes that Potain China was not committed to the plan until January 2000. Impairment of assets Under French GAAP, there are no specific rules specifying impairment criteria and how impairment should be measured. Under U.S. GAAP, long-lived assets and certain identifiable intangibles to be held and used are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If the sum of the estimated future cash flows expected to result from the asset and its eventual disposition is less than the carrying value of the asset, an impairment loss is recognized. Non-interest bearing notes receivable Under French GAAP, non-interest bearing notes receivable are recorded at the amounts stipulated in the agreements. No consideration is given to the impact of imputed interest. Under U.S. GAAP, non-interest bearing notes receivable exchanged for property, goods or services are recorded at their present value by discounting all future payments on the notes using an imputed rate of interest. Premiums are amortized into income over the life of the notes. F-53 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Rental agreement The Group has a lease agreement for 20 years and for which the lease payments are not uniform throughout the term of the lease. For French GAAP purposes, payments under operating leases are recorded as rent expense for the amounts incurred according to the lease agreement. Under U.S. GAAP, the total expense to be incurred under the lease is amortized uniformly on a straight-line basis over the term of the lease. The following is a summary of the significant adjustments to net income and shareholders' equity which would be required if U.S. GAAP were to be applied instead of French GAAP:
Shareholders' Shareholders' Adoption Shareholders' Equity Net Equity Net of Equity December 31, income December 31, income Standard December 31, In thousands of Euros 1998 1999 1999 2000 99-02 2000 - --------------------- ------------- ------- ------------- ------- -------- ------------- Amount in accordance with French GAAP....... 111,005 6,272 118,083 20,016 1,106 139,172 Revenue recognition..... (1,746) (897) (2,643) (1,790) (4,433) Deferred taxation....... 1,428 (994) 434 (697) (263) Consolidation........... 811 (95) 716 (716) Pensions & retirement indemnities............ (2,266) (184) (2,450) 183 (612) (2,879) IBNR reserve............ (115) 2 (113) (6) (119) Foreign currency hedge.. (82) (82) 82 Restructuring--China.... 902 902 (902) Impairment of assets.... (181) (181) Non-interest bearing notes receivable....... (412) (15) (427) 13 (414) Rental agreement........ (67) (67) Tax effect of the above adjustments............ 1,731 342 2,073 572 222 2,867 Amount in accordance with U.S. GAAP......... 110,435 5,261 116,493 17,224 0 133,683 Number of shares........ 909,945 909,945 Net income per share U.S. GAAP (Euros)...... 5.77 18.93
VI--SUPPLEMENTAL CASH FLOW INFORMATION
December 31 ------------------------- (in thousands Euros) 2000 1999 1998 -------------------- ------- ------- ------- Cash......................................... 16,637 14,949 6,838 Borrowings................................... (23,316) (12,940) (15,693) Amounts due from affiliates (included in other receivables).......................... 28,538 4,158 3,388 Amounts due to affiliates (included in other liabilities)................................ (3,582) (3,842) (2,064) ------- ------- ------- Net indebtedness............................. 18,277 2,325 (7,531)
F-54 POTAIN SA CONSOLIDATED STATEMENT OF INCOME FOR THE THREE MONTHS ENDED MARCH 31, 2001
(in thousands Euros) Operating revenues Sales.................................................................. 80,450 Operating expenses Raw material, supplies and services.................................... (62,400) Other operating expenses............................................... (13,429) ------- Current operating income............................................... 4,621 ======= Interest (expense) income, net......................................... (218) Amortization of goodwill, net.......................................... (118) Other income and (expense), net........................................ 0 ------- Income before taxes.................................................... 4,721 ======= Income taxes, current and deferred..................................... (1,807) ------- Net income............................................................. 2,914 ======= Number of shares at March 31........................................... 909,945 Net income per share (in euros)........................................ 3.2
F-55 POTAIN SA CONSOLIDATED BALANCE SHEET MARCH 31, 2001
Note March 31, 2001 ---- -------------- (in thousands Euros) ASSETS Intangible assets........................................... 7,070 Goodwill.................................................... 2,669 Property, plant and equipment............................... 62,530 Other non-current assets.................................... 2,630 ------- Total Fixed Assets...................................... 74,899 ======= Inventories................................................. 3 68,749 Accounts receivable......................................... 81,741 Other current assets........................................ 10,804 Cash........................................................ 49,561 ------- Total Current Assets.................................... 210,855 ======= Deferred tax assets......................................... 2,147 ------- Total Assets............................................ 287,901 ======= LIABILITIES Share Capital............................................... 13,649 Additional paid-in capital.................................. 12,495 Retained earnings........................................... 112,953 Net income for the year..................................... 2,914 ------- Shareholders' Equity.................................... 142,011 ======= Minority interests.......................................... 200 ------- Shareholders' Equity & Minority Interests............... 142,211 ======= Reserves for losses and contingencies Borrowings.................................................. 22,569 Accounts payable............................................ 63,059 Other liabilities........................................... 4 53,390 ------- Total Liabilities....................................... 139,018 ======= Deferred tax liabilities.................................... 6,672 ------- Total Liabilities & Shareholders' Equity................ 287,901 =======
F-56 POTAIN SA CONSOLIDATED STATEMENT OF CASH FLOW FOR THE THREE MONTHS ENDED MARCH 31, 2001
(in thousands of Euros) Cash Flows from Operations.............................................. 7,458 Change in working capital............................................... 4,371 Cash Flows from Operating Activities.................................... 11,829 Cash Flows from Investing Activities.................................... (3,473) Cash Flows from Financing Activities.................................... (480) (Increase) Decrease in Net Indebtedness................................. 7,876
F-57 POTAIN SA NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS FOR THE THREE MONTHS ENDED MARCH 31, 2001 NOTE 1--In the opinion of management, the accompanying unaudited condensed consolidated financial statements of Potain SA (Potain) contain all adjustments necessary to present fairly the financial position, results of operations and cash flows of Potain for the three months ended March 31, 2001 in conformity with French generally accepted accounting principals. These interim results are not necessarily indicative of results for a full year and do not contain information included in Potain's annual consolidated financial statements and notes for the year ended December 31, 2000. It is suggested that these financial statements be read in conjunction with Potain's financial statements and notes thereto included in Potain's year 2000 audited financial statements. NOTE 2--The consolidated financial statements of Potain include the financial statements of all significant companies directly or indirectly controlled by Potain SA. All companies included in the scope of consolidation are fully consolidated. NOTE 3--The components of inventories at March 31, 2001 are summarized as follows:
Components: ----------- Raw materials and other supplies..................................... 26,311 Work-in-process...................................................... 25,647 Finished goods....................................................... 21,807 Resale goods......................................................... 166 ------ Inventories at gross value........................................... 73,931 Provision for decrease in value...................................... (5,182) ------ Inventories at net book value........................................ 68,749 ======
Inventories are stated at the lower of cost or market. Cost is defined as acquisition or production cost and is computed using the weighted average cost method. NOTE 4--As of March 31, 2001, various product-related lawsuits were pending. All of these cases are insured with a deductible amount of $0.067 million per accident, except in the U.S. and Canada where the deductible is $0.025 million per accident. The insurer's coverage is limited to $13 millions per year for the whole group, except the US and Canada where it is limited to $31 millions in the aggregate for all accidents. Product liability reserves included in other current liabilities at March 31, 2001 were $0.9 million (excludes warranty accruals and technical updates). Based upon Potain's experience in defending itself against product liability claims, management believes the current reserves are adequate to cover estimated settlements or losses on the aggregate amount of claims. It is reasonably possible that the estimate for product liability claim costs may change in the near future based upon new information that may arise. Presently, there is no reliable means to estimate the amount of any such potential changes. Potain is involved in various other legal actions arising in the normal course of business. After taking into consideration legal counsel's evaluation of such actions, in the opinion of management, ultimate resolution is not expected to have a material adverse effect on the consolidated financial statements of Potain. NOTE 5--On May 9, 2001, all of the outstanding capital stock of Potain SA was acquired by The Manitowoc Company, Inc. (Manitowoc) from Legris Industries SA (Legris) pursuant to a Share Purchase F-58 POTAIN SA NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Agreement, dated May 9, 2001, between Manitowoc and Legris. The total purchase price paid by Manitowoc was FRF 2.3 billion ($307.1 million, based upon exchange rates as of May 7, 2001). NOTE 6--Potain determines its business segments based upon the internal organization that is used by management to make operating decisions and assess performance. Based upon this approach, Potain has one business segment which is Cranes. NOTE 7--The Group's consolidated financial statements are prepared in accordance with accounting principals generally accepted in France ("French GAAP") which differ in certain respects from accounting principals generally accepted in the United States ("U.S. GAAP"). The significant differences applicable to the Group are summarized in the audited consolidated financial statements. The following is a summary of the significant adjustments to net income and shareholder's equity which would be required if U.S. GAAP were applied instead of French GAAP for the three month period ended March 31, 2001:
Net Shareholder's in thousands of Euros Income Equity - --------------------- ------- ------------- Amount in accordance with French GAAP.................... 2,914 142,011 Revenue recognition...................................... (159) (4,803) Deferred taxation........................................ 36 1,591 Pension and retirement indemnities....................... (60) (1,898) Impairment of assets..................................... 10 (171) Rental agreement......................................... -- (138) Miscellaneous other...................................... -- (301) ------- ------- Amount in accordance with U.S. GAAP...................... 2,741 136,291 Number of shares......................................... 909,945 Net income per share U.S. GAAP (Euros)................... 3.01
F-59 ISSUER The Manitowoc Company, Inc. 500 South 16th Street Manitowoc, Wisconsin 54221 ADVISERS Legal Advisors to Manitowoc Foley & Lardner 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202 Independent Accountants for Manitowoc PricewaterhouseCoopers LLP 100 East Wisconsin Avenue Suite 1500 Milwaukee, Wisconsin 53202 Independent Auditors for Potain Ernst & Young Audit Tour Cristal Parc 113, Boulevard Stalingrad 69626 Villeurbanne Cedex France Trustee, Registrar, Principal Paying and Transfer Agent The Bank of New York 101 Barclay Street New York, New York 10286 Luxembourg Listing Agent, Transfer Agent and Special Paying Agent The Bank of New York (Luxembourg) S.A. 6D, route de Treves B.P. 263 L-2633 Senningerberg Luxembourg - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- [LOGO] Manitowoc The Manitowoc Company, Inc. (Euro)175,000,000 10 3/8% Senior Subordinated Notes due 2011 ------------------------------------- PROSPECTUS ------------------------------------- , 2001 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 20. Indemnification of Directors and Officers. Pursuant to the Wisconsin Business Corporation Law and the By-laws of The Manitowoc Company, Inc. (the "Company"), directors and officers of the Company are entitled to mandatory indemnification from the Company against certain liabilities (which may include liabilities under the Securities Act of 1933) and expenses (i) to the extent such officers or directors are successful in the defense of a proceeding and (ii) in proceedings in which the director or officer is not successful in defense thereof, unless it is determined that the director or officer breached or failed to perform his or her duties to the Company and such breach or failure constituted: (a) a willful failure to deal fairly with the Company or its shareholders in connection with a matter in which the director or officer had a material conflict of interest; (b) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (c) a transaction from which the director or officer derived an improper personal profit; or (d) willful misconduct. It should be noted that the Wisconsin Business Corporation Law specifically states that it is the public policy of Wisconsin to require or permit indemnification in connection with a proceeding involving securities regulation, as described therein, to the extent required or permitted as described above. Additionally, under the Wisconsin Business Corporation Law, directors of the Company are not subject to personal liability to the Company, its shareholders or any person asserting rights on behalf thereof for certain breaches or failures to perform any duty resulting solely from their status as directors except in circumstances paralleling those in subparagraphs (a) through (d) outlined above. The indemnification provided by the Wisconsin Business Corporation Law and the Company's By-laws is not exclusive of any other rights to which a director or officer may be entitled. Expenses for the defense of any action for which indemnification may be available may be advanced by the Company under certain circumstances. The Company maintains a liability insurance policy for its directors and officers as permitted by Wisconsin law which may extend to, among other things, liability arising under the Securities Act of 1933, as amended. The Company has entered into Indemnity Agreements with each of the members of the Company's Board of Directors and each executive officer of the Company. Pursuant to such Indemnity Agreements, the Company is required to indemnify each such person to the fullest extent permitted or required by the Wisconsin Business Corporation Law against any liability incurred by such person in any proceeding in which such person is a party because he or she is a director or executive officer of the Company Item 21. Exhibits and Financial Statement Schedules. (a) Exhibits. The exhibits listed in the accompanying Exhibit Index are filed (except where otherwise indicated) as part of this Registration Statement. (b) Financial Statement Schedules. Schedule II--Valuation and Qualifying Accounts is hereby incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 2000, as amended (File No. 1-11978). All other schedules are omitted because they are not applicable or not required, or because the required information is shown either in the consolidated financial statements or in the notes thereto. Item 22. Undertakings. (a) The undersigned Registrants hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: II-1 (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each of the Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. (d) The undersigned Registrants hereby undertake to respond to requests for information that is incorporated by reference into the Prospectus pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request. (e) The undersigned Registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective. II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. THE MANITOWOC COMPANY, INC. /s/ Terry D. Growcock By: _________________________________ Terry D. Growcock President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Terry D. Growcock President and Chief July 11, 2001 ____________________________________ Executive Terry D. Growcock Officer and Director (Principal Executive Officer) /s/ Glen E. Tellock Senior Vice President and July 11, 2001 ____________________________________ Chief Glen E. Tellock Financial Officer (Principal Financial Officer and Principal Accounting Officer) * Director July 11, 2001 ____________________________________ Virgis W. Colbert * Director July 11, 2001 ____________________________________ Daniel W. Duval * Director July 11, 2001 ____________________________________ James P. McCann * Director July 11, 2001 ____________________________________ James L. Packard * Director July 11, 2001 ____________________________________ Gilbert F. Rankin, Jr. * Director July 11, 2001 ____________________________________ Robert C. Stift * Director July 11, 2001 ____________________________________ Robert S. Throop
/s/ Terry D. Growcock *By: __________________________ Terry D. Growcock Attorney-in-fact S-1 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MARINETTE MARINE CORPORATION /s/ Thomas J. Byrne By: _________________________________ Thomas J. Byrne President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Thomas J. Byrne President (Principal July 11, 2001 ____________________________________ Executive Officer) Thomas J. Byrne /s/ Glen E. Tellock Vice President and Treasurer July 11, 2001 ____________________________________ and Director (Principal Glen E. Tellock Financial Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC FOODSERVICE COMPANIES, INC. /s/ James Walden By:__________________________________ James Walden President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ James Walden President (Principal July 11, 2001 ______________________________Executive_Officer)_____ James Walden /s/ Stacey Tidwell Vice President and July 11, 2001 ______________________________Treasurer_(Principal_____ Stacey Tidwell Financial Officer and Principal Accounting Officer) Director July 11, 2001 ____________________________________ Randy Simons /s/ John J. Hebel Director July 11, 2001 ____________________________________ John J. Hebel /s/ John P. Sande, III Director July 11, 2001 ____________________________________ John P. Sande, III
S-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC CRANE COMPANIES, INC. /s/ James Walden By: _________________________________ James Walden President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ James Walden President (Principal July 11, 2001 ______________________________Executive_Officer)_____ James Walden /s/ Stacey Tidwell Vice President and July 11, 2001 ______________________________Treasurer_(Principal_____ Stacey Tidwell Financial Officer and Principal Accounting Officer) Director July 11, 2001 ____________________________________ Randy Simons /s/ John J. Hebel Director July 11, 2001 ____________________________________ John J. Hebel /s/ John P. Sande, III Director July 11, 2001 ____________________________________ John P. Sande, III
S-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC FP, INC. /s/ James Walden By: _________________________________ James Walden President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ James Walden President (Principal July 11, 2001 ______________________________Executive_Officer)_____ James Walden /s/ Stacey Tidwell Vice President and July 11, 2001 ______________________________Treasurer_(Principal_____ Stacey Tidwell Financial Officer and Principal Accounting Officer) Director July 11, 2001 ____________________________________ Randy Simons /s/ John J. Hebel Director July 11, 2001 ____________________________________ John J. Hebel /s/ John P. Sande, III Director July 11, 2001 ____________________________________ John P. Sande, III
S-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC CP, INC. /s/ James Walden By: _________________________________ James Walden President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ James Walden President (Principal July 11, 2001 ______________________________Executive_Officer)_____ James Walden /s/ Stacey Tidwell Vice President and July 11, 2001 ______________________________Treasurer_(Principal_____ Stacey Tidwell Financial Officer and Principal Accounting Officer) Director July 11, 2001 ____________________________________ Randy Simons /s/ John J. Hebel Director July 11, 2001 ____________________________________ John J. Hebel /s/ John P. Sande, III Director July 11, 2001 ____________________________________ John P. Sande, III
S-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. DIVERSIFIED REFRIGERATION, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. KrausPresident (Principal July 11, 2001 ____________________________Executive_Officer)_______ Timothy J. Kraus /s/ Glen E. TellockTreasurer and Director July 11, 2001 ____________________________(Principal_Financial_______ Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. GrowcocDirectork July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. JonesDirector July 11, 2001 ____________________________________ Maurice D. Jones
S-7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. KMT REFRIGERATION, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. HARFORD DURACOOL, LLC /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-9 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. KMT SALES CORP. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-10 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC BEVERAGE SYSTEMS, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-11 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC EQUIPMENT WORKS, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-12 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC ICE, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-13 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MULTIPLEX COMPANY, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-14 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. SERVEND INTERNATIONAL, INC. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-15 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. SERVEND SALES CORP. /s/ Timothy J. Kraus By: _________________________________ Timothy J. Kraus President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Timothy J. Kraus President (Principal July 11, 2001 ____________________________________ Executive Officer) Timothy J. Kraus /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-16 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. FEMCO MACHINE COMPANY, INC. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-17 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC BOOM TRUCKS, INC. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-18 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC CRANES, INC. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-19 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC MEC, INC. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-20 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC RE-MANUFACTURING, INC. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-21 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. NORTH CENTRAL CRANE & EXCAVATOR SALES CORP. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-22 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. WEST-MANITOWOC, INC. /s/ Robert A. Giebel, Jr. By: _________________________________ Robert A. Giebel, Jr. President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert A. Giebel, Jr. President (Principal July 11, 2001 ____________________________________ Executive Officer) Robert A. Giebel, Jr. /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-23 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. ENVIRONMENTAL REHAB, INC. /s/ Terry D. Growcock By: _________________________________ Terry D. Growcock President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Terry D. Growcock President and Director July 11, 2001 ____________________________________ (Principal Executive Terry D. Growcock Officer) /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-24 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC CRANE & SHOVEL SALES CORP. /s/ Terry D. Growcock By: _________________________________ Terry D. Growcock President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Terry D. Growcock President and Director July 11, 2001 ____________________________________ (Principal Executive Terry D. Growcock Officer) /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-25 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC WESTERN COMPANY, INC. /s/ Terry D. Growcock By: _________________________________ Terry D. Growcock President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Terry D. Growcock President and Director July 11, 2001 ____________________________________ (Principal Executive Terry D. Growcock Officer) /s/ Glen E. Tellock Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Glen E. Tellock Officer and Principal Accounting Officer) /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-26 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. MANITOWOC MARINE GROUP, LLC By: The Manitowoc Company, Inc., as its sole member and manager /s/ Terry D. Growcock By: _________________________________ Terry D. Growcock President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Directors of The Manitowoc Company, Inc.:
Signature Title Date --------- ----- ---- /s/ Terry D. Growcock Director July 11, 2001 ____________________________________ Terry D. Growcock * Director July 11, 2001 ____________________________________ Virgis W. Colbert * Director July 11, 2001 ____________________________________ Daniel W. Duval * Director July 11, 2001 ____________________________________ James P. McCann * Director July 11, 2001 ____________________________________ James L. Packard * Director July 11, 2001 ____________________________________ Gilbert F. Rankin, Jr. * Director July 11, 2001 ____________________________________ Robert C. Stift * Director July 11, 2001 ____________________________________ Robert S. Throop
/s/ Terry D. Growcock *By: __________________________ Terry D. Growcock Attorney-in-fact S-27 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Manitowoc, State of Wisconsin, on July 11, 2001. POTAIN CORPORATION /s/ Terry D. Growcock By: _________________________________ Terry D. Growcock President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Terry D. Growcock President and Director July 11, 2001 ____________________________________ (Principal Executive Terry D. Growcock Officer) /s/ Carl J. Laurino Treasurer and Director July 11, 2001 ____________________________________ (Principal Financial Carl J. Laurino Officer and Principal Accounting Officer) /s/ Glen E. Tellock Director July 11, 2001 ____________________________________ Glen E. Tellock /s/ Maurice D. Jones Director July 11, 2001 ____________________________________ Maurice D. Jones
S-28 EXHIBIT INDEX
Exhibit Number Document Description ------- -------------------- 2.1 Share Purchase Agreement, dated May 9, 2001, by and among The Manitowoc Company, Inc., Manitowoc France SAS and Legris Industries SA (Incorporated by reference to Exhibit 2 to The Manitowoc Company, Inc.'s Current Report on Form 8-K dated as of May 9, 2001 (File No. 1-11978)). Schedules and exhibits to the Share Purchase Agreement have not been filed herewith. The Company agrees to furnish a copy of any omitted schedule or exhibit to the Commission upon request. 3.1 Amended and Restated Articles of Incorporation of The Manitowoc Company, Inc., as amended (Incorporated by reference to Exhibit 3(a) to The Manitowoc Company, Inc.'s Annual Report on Form 10-K for the fiscal year ended June 29, 1985). 3.2 Restated By-laws of The Manitowoc Company, Inc. (Incorporated by reference to Exhibit 3.2 to The Manitowoc Company, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1995). 3.3 Articles of Incorporation of Manitowoc Boom Trucks, Inc., as amended. 3.4 By-laws of Manitowoc Boom Trucks, Inc., as amended. 3.5 Articles of Incorporation of Manitowoc Ice, Inc. 3.6 By-laws of Manitowoc Ice, Inc. 3.7 Articles of Incorporation of Manitowoc Cranes, Inc. 3.8 By-laws of Manitowoc Cranes, Inc. 3.9 Articles of Incorporation of Manitowoc MEC, Inc., as amended. 3.10 By-laws of Manitowoc MEC, Inc., as amended. 3.11 Articles of Incorporation of Manitowoc Re-Manufacturing, Inc. 3.12 By-Laws of Manitowoc Re-Manufacturing, Inc., as amended. 3.13 Articles of Incorporation of Environmental Rehab, Inc. 3.14 By-laws of Environmental Rehab, Inc., as amended. 3.15 Articles of Incorporation of North Central Crane & Excavator Sales Corp. 3.16 By-laws of North Central Crane & Excavator Sales Corp., as amended. 3.17 Articles of Incorporation of Femco Machine Company, Inc., as amended. 3.18 By-laws of Femco Machine Company, Inc., as amended. 3.19 Articles of Incorporation of West-Manitowoc, Inc. 3.20 By-laws of West-Manitowoc, Inc. 3.21 Articles of Incorporation of SerVend International, Inc., as amended. 3.22 By-laws of SerVend International, Inc. 3.23 Articles of Incorporation of Manitowoc Beverage Systems, Inc., as amended. 3.24 By-laws of Manitowoc Beverage Systems, Inc., as amended. 3.25 Articles of Incorporation of Manitowoc Crane Companies, Inc., as amended. 3.26 By-laws of Manitowoc Crane Companies, Inc., as amended.
E-1
Exhibit Number Document Description ------- -------------------- 3.27 Articles of Incorporation of Manitowoc CP, Inc. 3.28 By-laws of Manitowoc CP, Inc. 3.29 Articles of Incorporation of Manitowoc Equipment Works, Inc., as amended. 3.30 By-laws of Manitowoc Equipment Works, Inc. 3.31 Articles of Incorporation of Manitowoc FP, Inc. 3.32 By-laws of Manitowoc FP, Inc. 3.33 Articles of Incorporation of SerVend Sales Corp. 3.34 By-laws of SerVend Sales Corp. 3.35 Articles of Incorporation of KMT Sales Corp. 3.36 By-laws of KMT Sales Corp. 3.37 Articles of Incorporation of Manitowoc Foodservice Companies, Inc., as amended. 3.38 By-laws of Manitowoc Foodservice Companies, Inc., as amended. 3.39 Articles of Incorporation of Multiplex Company, Inc., as amended. 3.40 By-laws of Multiplex Company, Inc., as amended. 3.41 Articles of Incorporation of Manitowoc Crane & Shovel Sales Corp. 3.42 Articles of Incorporation of KMT Refrigeration, Inc. 3.43 By-laws of KMT Refrigeration, Inc. 3.44 Charter of Diversified Refrigeration, Inc., as amended. 3.45 By-laws of Diversified Refrigeration, Inc., as amended. 3.46 Articles of Incorporation of Manitowoc Western Company, Inc. 3.47 By-laws of Manitowoc Western Company, Inc., as amended. 3.48 Articles of Organization of Harford Duracool, LLC, as amended. 3.49 Certificate of Incorporation of Potain Corporation, as amended. 3.50 By-laws of Potain Corporation. 3.51 Amended and Restated Articles of Incorporation of Marinette Marine Corporation. 3.52 By-laws of Marinette Marine Corporation, as amended. 3.53 Articles of Organization of Manitowoc Marine Group, LLC. 4.1 Credit Agreement, dated May 9, 2001, among The Manitowoc Company, Inc., the lenders party thereto and Bankers Trust Company, as Administrative Agent (Incorporated by reference to Exhibit 4.1 to The Manitowoc Company, Inc.'s Current Report on Form 8-K dated as of May 9, 2001 (File No. 1-11978)). 4.2 Indenture, dated May 9, 2001, among The Manitowoc Company, Inc., the Guarantors named therein, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 4.2 to The Manitowoc Company, Inc.'s Current Report on Form 8-K dated as of May 9, 2001 (File No. 1-11978)). 4.3 Form of New 10 3/8% Senior Subordinated Notes due 2011 and related Guarantees.
E-2
Exhibit Number Document Description ------- -------------------- 4.4 Registration Rights Agreement, dated May 9, 2001, among The Manitowoc Company, Inc., the Guarantors named therein and Deutsche Bank AG London. 5.1 Opinion of Foley & Lardner (including consent of counsel). 12.1 Statement re computation of ratios of earnings to fixed charges. 23.1 Consent of PricewaterhouseCoopers LLC. 23.2 Consent of Ernst & Young Audit. 23.3 Consent of Foley & Lardner (filed as part of Exhibit 5.1). 24.1 Powers of attorney. 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of New York. 99.1 Form of Letter of Transmittal. 99.2 Form of Letter to Clients. 99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
E-3 EX-3.3 2 manx3-3.txt ARTICLES OF MANITOWOC BOOM TRUCKS Exhibit 3.3 STATE OF TEXAS S S COUNTY OF HIDALGO S ARTICLES OF INCORPORATION, CLOSE CORPORATION ARTICLE ONE The name of the corporation is MANITOWOC BOOM TRUCKS, INC. ARTICLE TWO The period of its duration is perpetual. ARTICLE THREE The purpose for which the corporation is organized is the transaction of any or all lawful business for which a corporation may be incorporated under the Texas Business Corporation Act. ARTICLE FOUR The aggregate number of shares which the corporation shall have authority to issue is ONE THOUSAND AND NO/100THS of no par value. ARTICLE FIVE This corporation is a close corporation. ARTICLE SIX The corporation will not commence business until it has received for the issuance of shares consideration of the value of ONE THOUSAND DOLLARS consisting of money, labor done or property actually received. ARTICLE SEVEN The street address of its registered offices is c/o CT Corporation System, 350 North St. Paul Street, Dallas, Texas 75201, and the name of its registered agent at such address is CT Corporation System. ARTICLE EIGHT The business affairs of the corporation are to be managed by a board of directors. There will be three initial directors. Their name and address are: NAMES ADDRESSES ----- --------- John D. West (Chairman of the Board) 500 S. 16th St., Manitowoc, WI 54220 P. Ralph Helm 500 S. 16th St., Manitowoc, WI 54220 Frank E. Stevens 500 S. 16th St., Manitowoc, WI 54220 ARTICLE NINE The name and address of the incorporator is ALLEN E. SMITH, 1111 McAllen State Bank Tower, McAllen, Texas 78501. EX-3.4 3 manx3-4.txt BYLAWS OF MANITOWOC BOOM TRUCKS Exhibit 3.4 BYLAWS OF MANITOWOC BOOM TRUCKS, INC. (a Texas corporation) INTRODUCTION - VARIABLE REFERENCES Date of Adoption of these By-Laws: November Date of Incorporation: May 6, 1985 0.01. The annual shareholders' meeting will be held on the first Monday in November. * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): three (3). * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 72 hours if by mail; and (b) Not less than 48 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. *These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Officers. The corporation shall establish a principal business office in the State of Texas and shall maintain a resident agent in charge of such office. The corporation may have such principal and other business offices, either within or without the State of Texas, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Texas Business Corporation Law to be maintained in the State of Texas shall be identical with the principal office in the State of Texas, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Texas, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or the articles of incorporation, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. Such request shall state the purpose or purposes of the proposed meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Texas, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Texas, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Texas or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by the vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) no more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. Notice sent to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, sixty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President, in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 2.09. Proxies. At any meeting of the shareholders, any shareholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the Secretary of the corporation. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the Board of Directors or by the by-laws of such other corporation. (b) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (c) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. 2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Texas General Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13. Shareholders' Action Without Meeting. Except as may be otherwise required by the laws of the State of Texas, any action, except election of directors, which may be taken by the vote of shareholders at a meeting, may be taken without a meeting if authorized by the written consent of shareholders holding at least a majority of the voting power; provided, however, that if any greater proportion of voting power is required for such action at a meeting, then such greater proportion of written consent shall be required. In no instance where action is authorized by such written consent need a meeting of shareholders be called or noticed. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote on written consent of the holders of two-thirds of the outstanding shares entitled to vote for the election of such directors. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Texas or shareholders of the corporation, but at least one director must be a citizen of the United States of America. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Texas for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Texas as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Texas. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall he deemed to be delivered when deposited in the United States Mail so addressed, with postage thereon prepaid. If notice is given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President, in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of one or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting or such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities, shall keep regular minutes of their proceedings and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one), a President, one or more Vice Presidents (if the Board of Directors determines to elect one or more), one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by resolution of the Board of Directors and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act, then the Senior Vice President, or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which address shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS: SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by This Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Texas as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02. Indemnity of Officers and Directors. Every person who is or was a director or officer of the corporation, and any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor, shall (together with the heirs, executors and administrators of such person) be indemnified by the corporation against all costs, damages and expenses asserted against, incurred by or imposed upon him in connection with or resulting from any claim, action, suit or proceeding, including criminal proceedings, to which he is made or threatened to be made a party by reason of his being or having been such director or officer, except in relation to matters as to which a recovery shall be had against him by reason of his having been finally adjudged in such action, suit or proceeding to have been guilty of fraud in the performance of his duty as such officer or director. This indemnity shall include reimbursement of amounts and expenses incurred and paid in settling any such claim, action, suit or proceeding. In the case of a criminal action, suit or proceeding, a conviction or judgment (whether based on a plea of guilty or nolo contendere or its equivalent, or after trial) shall not be deemed an adjudication that such director or officer is guilty of fraud in the performance of his duties, if such director or officer was acting in good faith in what he considered to be the best interests of the corporation and with no reasonable cause to believe that the action was illegal. The corporation, by its Board of Directors, may indemnify in like manner, or with any limitations, any employee or former employee of the corporation with respect to any action taken or not taken in his capacity as such employee. The foregoing rights of indemnification shall be in addition to all rights to which officers, directors or employees may be entitled as a matter of law. 7.03. Transactions With the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, providing that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly and severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if 1) the fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or 2) the fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or 3) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation, the year when incorporated, and the words "Texas" and "Corporate Seal". 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.5 4 manx3-5.txt ARTICLES OF MANITOWOC, INC. Exhibit 3.5 ARTICLES OF INCORPORATION OF MANITOWOC ICE, INC. The undersigned incorporator, acting as incorporator of a corporation under the Wisconsin Business Corporation Law Chapter 180 of the Wisconsin Statutes (the "WBCL"), adopts the following Articles of Incorporation for such corporation: ARTICLE I Name The name of the corporation is Manitowoc Ice, Inc. ARTICLE II Purposes The purposes for which the corporation is organized are to engage in any lawful activity within the purposes for which a corporation may be organized under the WBCL. ARTICLE III Capital Stock The aggregate number of shares which the corporation shall have authority to issue is Nine Thousand (9,000) shares, consisting of one class only, designated as "Common Stock," of the par value of One Dollar ($1.00) per share. ARTICLE IV Preemptive Rights No holder of any stock of the corporation shall have any preemptive right to purchase, subscribe for, or otherwise acquire any shares of stock of the corporation of any class now or hereafter authorized, or any securities exchangeable for or convertible into such shares. ARTICLE V Registered Office and Agent The address of the initial registered office of the corporation is 44 East Mifflin Street, Madison, Wisconsin 53703 and the name of its initial registered agent at such address is CT Corporation System. ARTICLE VI Incorporator The name and address of the incorporator is Thomas A. Simonis, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202. EX-3.6 5 manx3-6.txt BYLAWS OF MANITOWOC, INC. Exhibit 3.6 BYLAWS OF MANITOWOC ICE, INC. ADOPTED NOVEMBER 11, 1996 TABLE OF CONTENTS ARTICLE I. OFFICES; RECORDS...................................................1 1.01. Principal and Business Offices..............................1 1.02. Registered Office and Registered Agent......................1 1.03. Corporate Records...........................................1 ARTICLE II. shareholders......................................................1 2.01. Annual Meetings.............................................1 2.02. Special Meetings............................................2 2.03. Place of Meeting............................................2 2.04. Notices to Shareholders.....................................2 (a) Required Notice....................................2 (b) Adjourned Meeting..................................2 (c) Waiver of Notice...................................3 (d) Contents of Notice.................................3 (e) Fundamental Transactions...........................3 2.05. Fixing of Record Date.......................................3 2.06. Shareholder List............................................4 2.07. Quorum and Voting Requirements..............................4 2.08. Conduct of Meetings.........................................4 2.09. Proxies.....................................................5 2.10. Voting of Shares............................................5 ARTICLE III. BOARD OF DIRECTORS...............................................5 3.01. General Powers and Number...................................5 3.02. Election, Removal, Tenure and Qualifications................5 3.03. Regular Meetings............................................6 3.04. Special Meetings............................................6 3.05. Meetings by Telephone or Other Communication Technology.....6 3.06. Notice of Meetings..........................................7 3.07. Quorum......................................................7 3.08. Manner of Acting............................................7 3.09. Conduct of Meetings.........................................7 3.10. Vacancies...................................................7 3.11. Compensation................................................8 3.12. Presumption of Assent.......................................8 3.13. Committees..................................................8 ARTICLE IV. OFFICERS..........................................................9 4.01. Appointment.................................................9 4.02. Resignation and Removal.....................................9 4.03. Vacancies...................................................9 4.04. Chairperson of the Board....................................9 -i- 4.05. President...................................................9 4.06. Vice Presidents............................................10 4.07. Secretary..................................................10 4.08. Treasurer..................................................10 4.09. Assistants and Acting Officers.............................10 4.10. Salaries...................................................11 ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER........................11 5.01. Certificates for Shares....................................11 5.02. Signature by Former Officers...............................11 5.03. Transfer of Shares.........................................11 5.04. Restrictions on Transfer...................................12 5.05. Lost, Destroyed or Stolen Certificates.....................12 5.06. Consideration for Shares...................................12 5.07. Stock Regulations..........................................12 ARTICLE VI. WAIVER OF NOTICE.................................................12 6.01. Shareholder Written Waiver.................................12 6.02. Shareholder Waiver by Attendance...........................13 6.03. Director Written Waiver....................................13 6.04. Director Waiver by Attendance..............................13 ARTICLE VII. ACTION WITHOUT MEETINGS.........................................13 7.01. Shareholder Action Without Meeting.........................13 7.02. Director Action Without Meeting............................13 ARTICLE VIII. INDEMNIFICATION................................................14 8.01. Indemnification for Successful Defense.....................14 8.02. Other Indemnification......................................14 8.03. Written Request............................................14 8.04. Nonduplication.............................................14 8.05. Determination of Right to Indemnification..................15 8.06. Advance of Expenses........................................16 8.07. Nonexclusivity.............................................16 8.08. Court-Ordered Indemnification..............................17 8.09. Indemnification and Allowance of Expenses of Employes and Agents.................................................17 8.10. Insurance..................................................18 8.11. Securities Law Claims......................................18 8.12. Liberal Construction.......................................18 8.13. Definitions Applicable to this Article.....................18 ARTICLE IX. SEAL.............................................................19 ARTICLE X. AMENDMENTS........................................................19 10.01. By Shareholders............................................19 -ii- 10.02. By Directors...............................................20 10.03. Implied Amendments.........................................20 -iii- ARTICLE I. OFFICES; RECORDS 1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office and Registered Agent. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin. The address of the registered office may be changed from time to time by any officer or by the registered agent. The office of the registered agent of the corporation shall be identical to such registered office. 1.03. Corporate Records. The following documents and records shall be kept at the corporation's principal office or at such other reasonable location as may be specified by the corporation: (a) Minutes of shareholders' and Board of Directors' meetings and any written notices thereof. (b) Records of actions taken by the shareholders or directors without a meeting. (c) Records of actions taken by committees of the Board of Directors. (d) Accounting records. (e) Records of its shareholders. (f) Current Bylaws. (g) Written waivers of notice by shareholders or directors (if any). (h) Written consents by shareholders or directors for actions without a meeting (if any). (i) Voting trust agreements (if any). (j) Stock transfer agreements to which the corporation is a party or of which it has notice (if any). ARTICLE II. SHAREHOLDERS 2.01. Annual Meetings. The annual meeting of the shareholders shall be held on the third Tuesday of October in each year at 2:00 p.m., or at such other time and date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting is a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors is not held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a meeting of the shareholders as soon thereafter as may be convenient. 2.02. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Chairperson of the Board, if there is one, the President or the Board of Directors. If and as required by the Wisconsin Business Corporation Law, a special meeting shall be called upon written demand describing one or more purposes for which it is to be held by holders of shares with at least 10% of the votes entitled to be cast on any issue proposed to be considered at the meeting. The purpose or purposes of any special meeting shall be described in the notice required by Section 2.04 of these Bylaws. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or any special meeting. If no designation is made, the place of meeting shall be the principal office of the corporation but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notices to Shareholders. (a) Required Notice. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than five (5) days nor more than sixty (60) days before the date of the meeting (unless a different time is provided by law or the Articles of Incorporation), by or at the direction of the Chairperson of the Board, if there is one, the President or the Secretary, to each shareholder entitled to vote at such meeting or, for the fundamental transactions described in subsections (e)(1) to (4) below (for which the Wisconsin Business Corporation Law requires that notice be given to shareholders not entitled to vote), to all shareholders. If mailed, such notice is effective when deposited in the United States mail, and shall be addressed to the shareholder's address shown in the current record of shareholders of the corporation, with postage thereon prepaid. At least twenty (20) days' notice shall be provided if the purpose, or one of the purposes, of the meeting is to consider a plan of merger or share exchange for which shareholder approval is required by law, or the sale, lease, exchange or other disposition of all or substantially all of the corporation's property, with or without good will, otherwise than in the usual and regular course of business. (b) Adjourned Meeting. Except as provided in the next sentence, if any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be -2- fixed, then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.04, to those persons who are shareholders as of the new record date. (c) Waiver of Notice. A shareholder may waive notice in accordance with Article VI of these Bylaws. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called, and only business within the purpose described in the meeting notice may be conducted at a special shareholders' meeting. Except as otherwise provided in subsection (e) of this Section 2.04, in the Articles of Incorporation, or in the Wisconsin Business Corporation Law, the notice of an annual shareholders' meeting need not include a description of the purpose or purposes for which the meeting is called. (e) Fundamental Transactions. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the Articles of Incorporation (including any restated articles); (2) a plan of merger or share exchange for which shareholder approval is required by law; (3) the sale, lease, exchange or other disposition of all or substantially all of the corporation's property, with or without good will, otherwise than in the usual and regular course of business; (4) the dissolution of the corporation; or (5) the removal of a director, the notice must so state and in cases (1), (2) and (3) above must be accompanied by, respectively, a copy or summary of the: (1) proposed articles of amendment or a copy of the restated articles that identifies any amendment or other change; (2) proposed plan of merger or share exchange; or (3) proposed transaction for disposition of all or substantially all of the corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders and beneficial shareholders are or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Sections 180.1301 to 180.1331 of the Wisconsin Business Corporation Law. 2.05. Fixing of Record Date. The Board of Directors may fix in advance a date as the record date for one or more voting groups for any determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote, or to take any other action, such date in any case to be not more than seventy (70) days prior to the meeting or action requiring such determination of shareholders, and may fix the record date for determining shareholders entitled to a share dividend or distribution. If no record date is fixed for the determination of shareholders entitled to demand a shareholder meeting, to notice of or to vote at a meeting of shareholders, or to consent to action without a meeting, (a) the close of business on the day before the corporation receives the first written demand for a shareholder meeting, (b) the close of business on the day before the first notice of the meeting is mailed or otherwise delivered to shareholders, or (c) the close of business on the day before the first written consent to shareholder action without a meeting is received by the corporation, as the case may be, shall be the record date for the determination of shareholders. If no record date is fixed for the determination of shareholders entitled to receive a share dividend or distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation's shares), the close of business on the day on which the resolutions of the Board of -3- Directors is adopted declaring the dividend or distribution shall be the record date. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof unless the Board of Directors fixes a new record date and except as otherwise required by law. A new record date must be set if a meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 2.06. Shareholder List. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete record of the shareholders entitled to notice of such meeting, arranged by class or series of shares and showing the address of and the number of shares held by each shareholder. The shareholder list shall be available at the meeting and may be inspected by any shareholder or his or her agent or attorney at any time during the meeting or any adjournment. Any shareholder or his or her agent or attorney may inspect the shareholder list beginning two (2) business days after the notice of the meeting is given and continuing to the date of the meeting, at the corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held and, subject to Section 180.1602(2)(b) 3 to 5 of the Wisconsin Business Corporation Law, may copy the list, during regular business hours and at his or her expense, during the period that it is available for inspection hereunder. The original stock transfer books and nominee certificates on file with the corporation (if any) shall be prima facie evidence as to who are the shareholders entitled to inspect the shareholder list or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum and Voting Requirements. Except as otherwise provided in the Articles of Incorporation or in the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast by shares entitled to vote as a separate voting group on a matter, represented in person or by proxy, shall constitute a quorum of that voting group for action on that matter at a meeting of shareholders. If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action unless a greater number of affirmative votes is required by the Wisconsin Business Corporation Law or the Articles of Incorporation. If the Articles of Incorporation or the Wisconsin Business Corporation Law provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one (1) voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, other than for the purpose of objecting to holding the meeting or transacting business at the meeting, it is considered present for purposes of determining whether a quorum exists for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that meeting. 2.08. Conduct of Meetings. The Chairperson of the Board, or if there is none, or in his or her absence, the President, and in the President's absence, a Vice President, in the order provided under Section 4.06 of these Bylaws, and in their absence, any person chosen by -4- the shareholders present shall call the meeting of the shareholders to order and shall act as chairperson of the meeting, and the Secretary shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote in person or by proxy appointed in writing by the shareholder or by his or her duly authorized attorney-in-fact. All proxy appointment forms shall be filed with the Secretary or other officer or agent of the corporation authorized to tabulate votes before or at the time of the meeting. Unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest, a proxy appointment may be revoked at any time. The presence of a shareholder who has filed a proxy appointment shall not of itself constitute a revocation. No proxy appointment shall be valid after eleven months from the date of its execution, unless otherwise expressly provided in the appointment form. The Board of Directors shall have the power and authority to make rules that are not inconsistent with the Wisconsin Business Corporation Law as to the validity and sufficiency of proxy appointments. 2.10. Voting of Shares. Each outstanding share shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares are enlarged, limited or denied by the Articles of Incorporation or the Wisconsin Business Corporation Law. Shares owned directly or indirectly by another corporation are not entitled to vote if this corporation owns, directly or indirectly, sufficient shares to elect a majority of the directors of such other corporation. However, the prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its Board of Directors. The number of directors of the corporation shall be three (3). The number of directors may be increased or decreased from time to time by amendment to this Section adopted by the shareholders or the Board of Directors, but no decrease shall have the effect of shortening the term of an incumbent director. 3.02. Election, Removal, Tenure and Qualifications. Unless action is taken without a meeting under Section 7.01 of these Bylaws, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a shareholders meeting at which a quorum is present; i.e., the individuals with the largest number of votes in favor of their election are elected as directors up to the maximum number of directors to be chosen in the election. Votes against a candidate are not given legal effect and are not counted as votes cast in an election of directors. In the event two (2) or more persons tie for the last vacancy to be -5- filled, a run-off vote shall be taken from among the candidates receiving the tie vote. Each director shall hold office until the next annual meeting of shareholders and until the director's successor shall have been elected or there is a decrease in the number of directors, or until his or her prior death, resignation or removal. If cumulative voting for directors is not authorized by the Articles of Incorporation, any director or directors may be removed from office by the shareholders if the number of votes cast to remove the director exceeds the number cast not to remove him or her, taken at a meeting of shareholders called for that purpose (unless action is taken without a meeting under Section 7.01 of these Bylaws), provided that the meeting notice states that the purpose, or one of the purposes, of the meeting is removal of the director. The removal may be made with or without cause unless the Articles of Incorporation or these Bylaws provide that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove that director. A director may resign at any time by delivering a written resignation to the Board of Directors, to the Chairperson of the Board (if there is one), or to the corporation through the Secretary or otherwise. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held, without other notice than this Bylaw, immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors and any committee may provide, by resolution, the time and place, either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairperson of the Board, if there is one, the President or any two (2) directors. Special meetings of any committee may be called by or at the request of the foregoing persons or the chairperson of the committee. The persons calling any special meeting of the Board of Directors or committee may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting called by them, and if no other place is fixed the place of meeting shall be the principal office the corporation in the State of Wisconsin. 3.05. Meetings by Telephone or Other Communication Technology. (a) Any or all directors may participate in a regular or special meeting or in a committee meeting of the Board of Directors by, or conduct the meeting through the use of, telephone or any other means of communication by which either: (i) all participating directors may simultaneously hear each other during the meeting or (ii) all communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors. (b) If a meeting will be conducted through the use of any means described in paragraph (a), all participating directors shall be informed that a meeting is taking -6- place at which official business may be transacted. A director participating in a meeting by any means described in paragraph (a) is deemed to be present in person at the meeting. 3.06. Notice of Meetings. Except as otherwise provided in the Articles of Incorporation or the Wisconsin Business Corporation Law, notice of the date, time and place of any special meeting of the Board of Directors and of any special meeting of a committee of the Board shall be given orally or in writing to each director or committee member at least 48 hours prior to the meeting, except that notice by mail shall be given at least 72 hours prior to the meeting. The notice need not describe the purpose of the meeting. Notice may be communicated in person, by telephone, telegraph or facsimile, or by mail or private carrier. Oral notice is effective when communicated. Written notice is effective as follows: If delivered in person, when received; if given by mail, when deposited, postage prepaid, in the United States mail addressed to the director at his or her business or home address (or such other address as the director may have designated in writing filed with the Secretary); if given by facsimile, at the time transmitted to a facsimile number at any address designated above; and if given by telegraph, when delivered to the telegraph company. 3.07. Quorum. Except as otherwise provided by the Wisconsin Business Corporation Law, a majority of the number of directors as provided in Section 3.01 shall constitute a quorum of the Board of Directors. Except as otherwise provided by the Wisconsin Business Corporation Law, a majority of the number of directors appointed to serve on a committee shall constitute a quorum of the committee. 3.08. Manner of Acting. Except as otherwise provided by the Wisconsin Business Corporation Law or the Articles of Incorporation, the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors or any committee thereof. 3.09. Conduct of Meetings. The Chairperson of the Board, or if there is none, or in his or her absence, the President, and in the President's absence, a Vice President in the order provided under Section 4.06 of these Bylaws, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall chair the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any assistant secretary or any director or other person present to act as secretary of the meeting. 3.10. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled by the shareholders or the Board of Directors. If the directors remaining in office constitute fewer than a quorum of the Board, the directors may fill a vacancy by the affirmative vote of a majority of all directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors. A vacancy that will occur at a specific later date (because of a resignation effective at a later date or otherwise) -7- may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs. 3.11. Compensation. The Board of Directors, irrespective of any personal interest of any of its members, may fix the compensation of directors. 3.12. Presumption of Assent. A director who is present and is announced as present at a meeting of the Board of Directors or a committee thereof at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless (i) the director objects at the beginning of the meeting or promptly upon his or her arrival to holding the meeting or transacting business at the meeting, or (ii) the director's dissent or abstention from the action taken is entered in the minutes of the meeting, or (iii) the director delivers his or her written dissent or abstention to the presiding officer of the meeting before the adjournment thereof or to the corporation immediately after the adjournment of the meeting, or (iv) the director dissents or abstains from the action taken, minutes of the meeting are prepared and fail to show the director's dissent or abstention from the action taken, and the director delivers to the corporation a written notice of that omission from the minutes promptly after receiving a copy of the minutes. Such right to dissent or abstain shall not apply to a director who voted in favor of such action. 3.13. Committees. Unless the Articles of Incorporation otherwise provide, the Board of Directors, by resolution adopted by the affirmative vote of a majority of all the directors then in office, may create one (1) or more committees, each committee to consist of two (2) or more directors as members, which to the extent provided in the resolution as initially adopted, and as thereafter supplemented or amended by further resolution adopted by a like vote, may exercise the authority of the Board of Directors, except that no committee may: (a) authorize distributions; (b) approve or propose to shareholders action that the Wisconsin Business Corporation Law requires be approved by shareholders; (c) fill vacancies on the Board of Directors or any of its committees, except that the Board of Directors may provide by resolution that any vacancies on a committee shall be filled by the affirmative vote of a majority of the remaining committee members; (d) amend the Articles of Incorporation; (e) adopt, amend or repeal Bylaws; (f) approve a plan of merger not requiring shareholder approval; (g) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors or (h) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares, except within limits prescribed by the Board of Directors. All members of the Board of Directors who are not members of a given committee shall be alternate members of such committee and may take the place of any absent member or members at any meeting of such committee, upon request by the Chairperson of the Board, if there is one, the President or upon request by the chairperson of such meeting. Each such committee shall fix its own rules (consistent with the Wisconsin Business Corporation Law, the Articles of Incorporation and these Bylaws) governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. Unless otherwise provided by the Board of Directors in creating a committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of -8- authority. The creation of a committee, delegation of authority to a committee or action by a committee does not relieve the Board of Directors or any of its members of any responsibility imposed on the Board of Directors or its members by law. ARTICLE IV. OFFICERS 4.01. Appointment. The principal officers shall include a President, one or more Vice Presidents (the number and designations to be determined by the Board of Directors), a Secretary and such other officers, if any, as may be deemed necessary by the Board of Directors, each of whom shall be appointed by the Board of Directors. Any two or more offices may be held by the same person. 4.02. Resignation and Removal. An officer shall hold office until he or she resigns, dies, is removed hereunder, or a different person is appointed to the office. An officer may resign at any time by delivering an appropriate written notice to the corporation. The resignation is effective when the notice is delivered, unless the notice specifies a later effective date and the corporation accepts the later effective date. Any officer may be removed by the Board of Directors with or without cause and notwithstanding the contract rights, if any, of the person removed. Except as provided in the preceding sentence, the resignation or removal is subject to any remedies provided by any contract between the officer and the corporation or otherwise provided by law. Appointment shall not of itself create contract rights. 4.03. Vacancies. A vacancy in any office because of death, resignation, removal or otherwise, shall be filled by the Board of Directors. If a resignation is effective at a later date, the Board of Directors may fill the vacancy before the effective date if the Board of Directors provides that the successor may not take office until the effective date. 4.04. Chairperson of the Board. The Board of Directors may at its discretion appoint a Chairperson of the Board. The Chairperson of the Board, if there is one, shall preside at all meetings of the shareholders and Board of Directors, and shall carry out such other duties as directed by the Board of Directors. 4.05. President. The President shall be the principal executive officer and, subject to the control and direction of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He or she shall, in the absence of the Chairperson of the Board (if one is appointed), preside at all meetings of the shareholders and of the Board of Directors. The President shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employes of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employes shall hold office at the discretion of the President. The President shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of -9- Directors; and, except as otherwise provided by law or directed by the Board of Directors, the President may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his or her place and stead. In general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. 4.06. Vice Presidents. In the absence of the President, or in the event of the President's death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, a Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the President or the Board of Directors. The execution of any instrument of the corporation by any Vice President shall be conclusive evidence, as to third parties, of the Vice President's authority to act in the stead of the President. 4.07. Secretary. The Secretary shall: (a) keep (or cause to be kept) regular minutes of all meetings of the shareholders, the Board of Directors and any committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents which are authorized to be executed on behalf of the corporation under its seal; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 4.08. Treasurer. If the Board of Directors appoints a Treasurer, the Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected by the corporation; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 4.09. Assistants and Acting Officers. The Board of Directors and the President shall have the power to appoint any person to act as assistant to any officer, or as -10- agent for the corporation in the officer's stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors or President shall have the power to perform all the duties of the office to which that person is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors or the President. 4.10. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the corporation. ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER 5.01. Certificates for Shares. All shares of this corporation shall be represented by certificates. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. At a minimum, a share certificate shall state on its face the name of the corporation and that it is organized under the laws of the State of Wisconsin, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, that the certificate represents. If the corporation is authorized to issue different classes of shares or different series within a class, the front or back of the certificate must contain either (a) a summary of the designations, relative rights, preferences and limitations applicable to each class, and the variations in the rights, preferences and limitations determined for each series and the authority of the Board of Directors to determine variations for future series, or (b) a conspicuous statement that the corporation will furnish the shareholder the information described in clause (a) on request, in writing and without charge. Such certificates shall be signed, either manually or in facsimile, by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 5.05. 5.02. Signature by Former Officers. If an officer or assistant officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, has ceased to be such officer or assistant officer before such certificate is issued, the certificate may be issued by the corporation with the same effect as if that person were still an officer or assistant officer at the date of its issue. 5.03. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer, and unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the shareholder, the corporation may treat the registered owner of such shares as the person -11- exclusively entitled to vote, to receive notifications and otherwise to have and exercise all the rights and power of an owner. The corporation may require reasonable assurance that all transfer endorsements are genuine and effective and in compliance with all regulations prescribed by or under the authority of the Board of Directors. 5.04. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction upon the transfer of such shares imposed by the corporation or imposed by any agreement of which the corporation has written notice. 5.05. Lost, Destroyed or Stolen Certificates. Where the owner claims that his or her certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) if required by the corporation, files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors. 5.06. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time and determined to be adequate by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration may consist of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services to be performed, or other securities of the corporation. When the corporation receives the consideration for which the Board of Directors authorized the issuance of shares, such shares shall be deemed to be fully paid and nonassessable by the corporation. 5.07. Stock Regulations. The Board of Directors shall have the power and authority to make all such rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more registrars. ARTICLE VI. WAIVER OF NOTICE 6.01. Shareholder Written Waiver. A shareholder may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or these Bylaws before or after the date and time stated in the notice. The waiver shall be in writing and signed by the shareholder entitled to the notice, shall contain the same information that would have been required in the notice under the Wisconsin Business Corporation Law except that the time and place of meeting need not be stated, and shall be delivered to the corporation for inclusion in the corporate records. -12- 6.02. Shareholder Waiver by Attendance. A shareholder's attendance at a meeting, in person or by proxy, waives objection to both of the following: (a) Lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transaction business at the meeting. (b) Consideration of a particular matter at the meeting that is not within the purpose described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 6.03. Director Written Waiver. A director may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or the Bylaws before or after the date and time stated in the notice. The waiver shall be in writing, signed by the director entitled to the notice and retained by the corporation. 6.04. Director Waiver by Attendance. A director's attendance at or participation in a meeting of the Board of Directors or any committee thereof waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly upon his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. ARTICLE VII. ACTION WITHOUT MEETINGS 7.01. Shareholder Action Without Meeting. Action required or permitted by the Wisconsin Business Corporation Law to be taken at a shareholders' meeting may be taken without a meeting (a) by all shareholders entitled to vote on the action, or (b) if the Articles of Incorporation so provide (and except with respect to an election of directors for which shareholders may vote cumulatively) by shareholders who would be entitled to vote at a meeting shares with voting power sufficient to cast not less than the minimum number (or, in the case of voting by voting groups, the minimum numbers) of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the shareholders consenting thereto and delivered to the corporation for inclusion in its corporate records. A consent hereunder has the effect of a meeting vote and may be described as such in any document. The Wisconsin Business Corporation Law requires that notice of the action be given to certain shareholders and specifies the effective date thereof and the record date in respect thereto. 7.02. Director Action Without Meeting. Unless the Articles of Incorporation provide otherwise, action required or permitted by the Wisconsin Business Corporation Law to be taken at a Board of Directors meeting or committee meeting may be taken without a meeting if the action is taken by all members of the Board or committee. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and retained by the corporation. Action taken hereunder is effective when the last director signs the consent, unless the consent specifies a different effective date. A consent signed -13- hereunder has the effect of a unanimous vote taken at a meeting at which all directors or committee members were present, and may be described as such in any document. ARTICLE VIII. INDEMNIFICATION 8.01. Indemnification for Successful Defense. Within twenty (20) days after receipt of a written request pursuant to Section 8.03, the corporation shall indemnify a director or officer, to the extent he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation. 8.02. Other Indemnification. (a) In cases not included under Section 8.01, the corporation shall indemnify a director or officer against all liabilities and expenses incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the corporation, unless liability was incurred because the director or officer breached or failed to perform a duty he or she owes to the corporation and the breach or failure to perform constitutes any of the following: (1) A willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest. (2) A violation of criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful. (3) A transaction from which the director or officer derived an improper personal profit. (4) Willful misconduct. (b) Determination of whether indemnification is required under this Section shall be made pursuant to Section 8.05. (c) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director of officer is not required under this Section. 8.03. Written Request. A director or officer who seeks indemnification under Section 8.01 or 8.02 shall make a written request to the corporation. 8.04. Nonduplication. The corporation shall not indemnify a director or officer under Sections 8.01 or 8.02 if the director or officer has previously received -14- indemnification or allowance of expenses from any person, including the corporation, in connection with the same proceeding. However, the director or officer has no duty to look to any other person for indemnification. 8.05. Determination of Right to Indemnification. (a) Unless otherwise provided by the Articles of Incorporation or by written agreement between the director or officer and the corporation, the director or officer seeking indemnification under Section 8.02 shall select one of the following means for determining his or her right to indemnification: (1) By a majority vote of a quorum of the Board of Directors consistent of directors not at the time parties to the same or related proceedings. If a quorum of disinterested directors cannot be obtained, by majority vote of a committee duly appointed by the Board of Directors and consisting solely of two (2) or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee. (2) By independent legal counsel selected by a quorum of the Board of Directors or its committee i the manner prescribed in sub. (1) or, if unable to obtain such a quorum or committee, by a majority vote of the full Board of Directors, including directors who are parties to the same or related proceedings. (3) By a panel of three (3) arbitrators consisting of one arbitrator selected by those directors entitled under sub. (2) to select independent legal counsel, one arbitrator selected by the director or officer seeking indemnification and one arbitrator selected by the two (2) arbitrators previously selected. (4) By an affirmative vote of shares represented at a meeting of shareholders at which a quorum of the voting group entitled to vote thereon is present. Shares owned by, or voted under the control of, persons who are at the time parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination. (5) By a court under Section 8.08. (6) By any other method provided for in any additional right to indemnification permitted under Section 8.07. (b) In any determination under (a), the burden of proof is on the corporation to prove by clear and convincing evidence that indemnification under Section 8.02 should not be allowed. -15- (c) A written determination as to a director's or officer's indemnification under Section 8.02 shall be submitted to both the corporation and the director or officer within 60 days of the selection made under (a). (d) If it is determined that indemnification is required under Section 8.02, the corporation shall pay all liabilities and expenses not prohibited by Section 8.04 within ten (10) days after receipt of the written determination under (c). the corporation shall also pay all expenses incurred by the director or officer in the determination process under (a). 8.06. Advance of Expenses. Within ten (10) days after receipt of a written request by a director or officer who is a party to a proceeding, the corporation shall pay or reimburse his or her reasonable expenses as incurred if the director or officer provides the corporation with all of the following: (1) A written affirmation of his or her good faith belief that he or she has not breached or failed to perform his or her duties to the corporation. (2) A written undertaking, executed personally or on his or her behalf, to repay the allowance to the extent that it is ultimately determined under Section 8.05 that indemnification under Section 8.02 is not required and that indemnification is not ordered by a court under Section 8.08(b)(2). The undertaking under this subsection shall be an unlimited general obligation of the director or officer and may be accepted without reference to his or her ability to repay the allowance. The undertaking may be secured or unsecured. 8.07. Nonexclusivity.(a) Except as provided in (b), Sections 8.01, 8.02 and 8.06 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following: (1) The Articles of Incorporation. (2) A written agreement between the director or officer and the corporation. (3) A resolution of the Board of Directors. (4) A resolution, after notice, adopted by a majority vote of all of the corporation's voting shares then issued and outstanding. (b) Regardless of the existence of an additional right under (a), the corporation shall not indemnify a director or officer, or permit a director or officer to retain any allowance of expenses unless it is determined by or on behalf of the corporation that the director or officer did not breach or fail to perform a duty he or she owes to the corporation which constitutes conduct under Section 8.02(a)(1), (2), (3) or (4). A director or officer who is a party to the same or related proceeding for which -16- indemnification or an allowance of expenses is sought may not participate in a determination under this subsection. (c) Sections 8.01 to 8.13 do not affect the corporation's power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances. (1) As a witness in a proceeding to which he or she is not a party. (2) As a plaintiff or petitioner in a proceeding because he or she is or was an employe, agent, director or officer of the corporation. 8.08. Court-Ordered Indemnification. (a) Except as provided otherwise by written agreement between the director or officer and the corporation, a director or officer who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. Application shall be made for an initial determination by the court under Section 8.05(a)(5) or for review by the court of an adverse determination under Section 8.05(a)(1), (2), (3), (4) or (6). After receipt of an application, the court shall give any notice it considers necessary. (b) The court shall order indemnification if it determines any of the following: (1) That the director or officer is entitled to indemnification under Sections 8.01 or 8.02. (2) That the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether indemnification is required under Section 8.02. (c) If the court determines under (b) that the director or officer is entitled to indemnification, the corporation shall pay the director's or officer's expenses incurred to obtain the court-ordered indemnification. 8.09. Indemnification and Allowance of Expenses of Employes and Agents. The corporation shall indemnify an employe of the corporation who is not a director or officer of the corporation, to the extent that he or she has been successful on the merits or otherwise in defense of a proceeding, for all reasonable expenses incurred in the proceeding if the employe was a party because he or she was an employe of the corporation. In addition, the corporation may indemnify and allow reasonable expenses of an employe or agent who is not a director or officer of the corporation to the extent provided by the Articles of Incorporation or these Bylaws, by general or specific action of the Board of Directors or by contract. -17- 8.10. Insurance. The corporation may purchase and maintain insurance on behalf of an individual who is an employe, agent, director or officer of the corporation against liability asserted against or incurred by the individual in his or her capacity as an employe, agent, director or officer, regardless of whether the corporation is required or authorized to indemnify or allow expenses to the individual against the same liability under Sections 8.01, 8.02, 8.06, 8.07 and 8.09. 8.11. Securities Law Claims. (a) Pursuant to the public policy of the State of Wisconsin, the corporation shall provide indemnification and allowance of expenses and may insure for any liability incurred in connection with a proceeding involving securities regulation described under (b) to the extent required or permitted under Sections 8.01 to 8.10. (b) Sections 8.01 to 8.10 apply, to the extent applicable to any other proceeding, to any proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities, securities brokers or dealers, or investment companies or investment advisers. 8.12. Liberal Construction. In order for the corporation to obtain and retain qualified directors, officers and employes, the foregoing provisions shall be liberally administered in order to afford maximum indemnification of directors, officers and, where Section 8.09 of these Bylaws applies, employes. The indemnification above provided for shall be granted in all applicable cases unless to do so would clearly contravene law, controlling precedent or public policy. 8.13. Definitions Applicable to this Article. For purposes of this Article: (a) "Affiliate" shall include, without limitation, any corporation, partnership, joint venture, employe benefit plan, trust or other enterprise that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the corporation. (b) "Corporation" means this corporation and any domestic or foreign predecessor of this corporation where the predecessor corporation" existence ceased upon the consummation of a merger or other transaction. (c) "Director or officer" means any of the following: (1) An individual who is or was a director or officer of this corporation. (2) An individual who, while a director or officer of this corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, member of any governing or decision-making -18- committee, employe or agent of another corporation or foreign corporation, partnership, joint venture, trust or other enterprise. (3) An individual who, while a director or officer of this corporation, is or was serving an employe benefit plan because his or her duties to the corporation also impose duties on, or otherwise involve services by, the person to the plan or to participants in or beneficiaries of the plan. (4) Unless the context requires otherwise, the estate or personal representative of a director or officer. For purposes of this Article, it shall be conclusively presumed that any director or officer serving as a director, officer, partner, trustee, member of any governing or decision-making committee, employe or agent of an affiliate shall be so serving at the request of the corporation (d) "Expenses" include fees, costs, charges, disbursements, attorney fees and other expenses incurred in connection with a proceeding. (e) "Liability" includes the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including an excise tax assessed with respect to an employe benefit plan, and reasonable expenses. (f) "Party" includes an individual who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding. (g) "Proceeding" means any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person. ARTICLE IX. SEAL The Board of Directors may provide a corporate seal which may be circular in form and have inscribed thereon the name of the corporation and the state of incorporation and the words "Corporate Seal." ARTICLE X. AMENDMENTS 10.01. By Shareholders. These Bylaws may be amended or repealed and new Bylaws may be adopted by the shareholders by the vote provided in Section 2.07 of these Bylaws or as specifically provided below. If authorized by the Articles of Incorporation, the shareholders may adopt or amend a Bylaw that fixes a greater or lower quorum requirement or a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided in the Wisconsin Business Corporation Law. The adoption or amendment of a Bylaw that adds, changes or deletes a greater or lower quorum requirement or a greater voting -19- requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect. 10.02. By Directors. Except as the Articles of Incorporation may otherwise provide, these Bylaws may also be amended or repealed and new Bylaws may be adopted by the Board of Directors by the vote provided in Section 3.08, but (a) no Bylaw adopted by the shareholders shall be amended, repealed or readopted by the Board of Directors if the Bylaw so adopted so provides and (b) a Bylaw adopted or amended by the shareholders that fixes a greater or lower quorum requirement or a greater voting requirement for the Board of Directors than otherwise is provided in the Wisconsin Business Corporation Law may not be amended or repealed by the Board of Directors unless the Bylaw expressly provides that it may be amended or repealed by a specified vote of the Board of Directors. Action by the Board of Directors to adopt or amend a Bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect, unless a different voting requirement is specified as provided by the preceding sentence. A Bylaw that fixes a greater or lower quorum requirement or a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided in the Wisconsin Business Corporation Law may not be adopted, amended or repealed by the Board of Directors. 10.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the Bylaws then in effect but is taken or authorized by a vote that would be sufficient to amend the Bylaws so that the Bylaws would be consistent with such action, shall be given the same effect as though the Bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized. -20- EX-3.7 6 manx3-7.txt ARTICLES OF MANITOWOC CRANES, INC. Exhibit 3.7 ARTICLES OF INCORPORATION OF MANITOWOC CRANES, INC. The undersigned incorporator, acting as incorporator of a corporation under the Wisconsin Business Corporation Law Chapter 180 of the Wisconsin Statutes (the "WBCL"), adopts the following Articles of Incorporation for such corporation: ARTICLE I Name The name of the corporation is Manitowoc Cranes, Inc. ARTICLE II Purposes The purposes for which the corporation is organized are to engage in any lawful activity within the purposes for which a corporation may be organized under the WBCL. ARTICLE III Capital Stock The aggregate number of shares which the corporation shall have authority to issue is Nine Thousand (9,000) shares, consisting of one class only, designated as "Common Stock," of the par value of One Dollar ($1.00) per share. ARTICLE IV Preemptive Rights No holder of any stock of the corporation shall have any preemptive right to purchase, subscribe for, or otherwise acquire any shares of stock of the corporation of any class now or hereafter authorized, or any securities exchangeable for or convertible into such shares. ARTICLE V Registered Office and Agent The address of the initial registered office of the corporation is 44 East Mifflin Street, Madison, Wisconsin 53703 and the name of its initial registered agent at such address is CT Corporation System. ARTICLE VI Incorporator The name and address of the incorporator is Thomas A. Simonis, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202. EX-3.8 7 manx3-8.txt BYLAWS OF MANITOWOC CRANES, INC. Exhibit 3.8 BYLAWS OF MANITOWOC CRANES, INC. ADOPTED NOVEMBER 11, 1996 TABLE OF CONTENTS ARTICLE I. OFFICES; RECORDS 1.01. Principal and Business Offices.................................1 1.02. Registered Office and Registered Agent.........................1 1.03. Corporate Records..............................................1 ARTICLE II. SHAREHOLDERS 2.01. Annual Meetings................................................1 2.02. Special Meetings...............................................2 2.03. Place of Meeting...............................................2 2.04. Notices to Shareholders........................................2 (a) Required Notice................................................2 (b) Adjourned Meeting..............................................2 (c) Waiver of Notice...............................................3 (d) Contents of Notice.............................................3 (e) Fundamental Transactions.......................................3 2.05. Fixing of Record Date..........................................3 2.06. Shareholder List...............................................4 2.07. Quorum and Voting Requirements.................................4 2.08. Conduct of Meetings............................................4 2.09. Proxies........................................................5 2.10. Voting of Shares...............................................5 ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number......................................5 3.02. Election, Removal, Tenure and Qualifications...................5 3.03. Regular Meetings...............................................6 3.04. Special Meetings...............................................6 3.05. Meetings by Telephone or Other Communication Technology........6 3.06. Notice of Meetings.............................................7 3.07. Quorum.........................................................7 3.08. Manner of Acting...............................................7 3.09. Conduct of Meetings............................................7 3.10. Vacancies......................................................7 3.11. Compensation...................................................8 3.12. Presumption of Assent..........................................8 3.13. Committees.....................................................8 ARTICLE IV. OFFICERS 4.01. Appointment....................................................9 -i- 4.02. Resignation and Removal.........................................9 4.03. Vacancies.......................................................9 4.04. Chairperson of the Board........................................9 4.05. President.......................................................9 4.06. Vice Presidents................................................10 4.07. Secretary......................................................10 4.08. Treasurer......................................................10 4.09. Assistants and Acting Officers.................................10 4.10. Salaries.......................................................11 ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER 5.01. Certificates for Shares........................................11 5.02. Signature by Former Officers...................................11 5.03. Transfer of Shares.............................................11 5.04. Restrictions on Transfer.......................................12 5.05. Lost, Destroyed or Stolen Certificates.........................12 5.06. Consideration for Shares.......................................12 5.07. Stock Regulations..............................................12 ARTICLE VI. WAIVER OF NOTICe 6.01. Shareholder Written Waiver.....................................12 6.02. Shareholder Waiver by Attendance...............................13 6.03. Director Written Waiver........................................13 6.04. Director Waiver by Attendance..................................13 ARTICLE VII. ACTION WITHOUT MEETINGS 7.01. Shareholder Action Without Meeting.............................13 7.02. Director Action Without Meeting................................13 ARTICLE VIII. INDEMNIFICATION 8.01. Indemnification for Successful Defense.........................14 8.02. Other Indemnification..........................................14 8.03. Written Request................................................14 8.04. Nonduplication.................................................14 8.05. Determination of Right to Indemnification......................15 8.06. Advance of Expenses............................................16 8.07. Nonexclusivity.................................................16 8.08. Court-Ordered Indemnification..................................17 8.09. Indemnification and Allowance of Expenses of Employes and Agents......................................................17 8.10. Insurance......................................................18 8.11. Securities Law Claims..........................................18 -ii- 8.12. Liberal Construction...........................................18 8.13. Definitions Applicable to this Article.........................18 ARTICLE IX. SEAL ARTICLE X. AMENDMENTS 10.01. By Shareholders................................................19 10.02. By Directors...................................................20 10.03. Implied Amendments.............................................20 ARTICLE XI. STOCK TRANSFER RESTRICTION -iii- ARTICLE I. OFFICES; RECORDS 1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office and Registered Agent. The registered office of the corporation required by the Wisconsin Business Corporation law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin. The address of the registered office may be changed from time to time by any officer or by the registered agent. The office of the registered agent of the corporation shall be identical to such registered office. 1.03. Corporate Records. The following documents and records shall be kept at the corporation's principal office or at such other reasonable location as may be specified by the corporation: (a) Minutes of shareholders' and Board of Directors' meetings and any written notices thereof. (b) Records of actions taken by the shareholders or directors without a meeting. (c) Records of actions taken by committees of the Board of Directors. (d) Accounting records. (e) Records of its shareholders. (f) Current Bylaws. (g) Written waivers of notice by shareholders or directors (if any). (h) Written consents by shareholders or directors for actions without a meeting (if any). (i) Voting trust agreements (if any). (j) Stock transfer agreements to which the corporation is a party or of which it has notice (if any). ARTICLE II. SHAREHOLDERS 2.01. Annual Meetings. The annual meeting of the shareholders shall be held on the third Tuesday of October in each year at 2:00 p.m., or at such other time and date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting is a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors is not held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a meeting of the shareholders as soon thereafter as may be convenient. 2.02. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Chairperson of the Board, if there is one, the President or the Board of Directors. If and as required by the Wisconsin Business Corporation Law, a special meeting shall be called upon written demand describing one or more purposes for which it is to be held by holders of shares with at least 10% of the votes entitled to be cast on any issue proposed to be considered at the meeting. The purpose or purposes of any special meeting shall be described in the notice required by Section 2.04 of these Bylaws. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or any special meeting. If no designation is made, the place of meeting shall be the principal office of the corporation but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notices to Shareholders. (a) Required Notice. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than five (5) days nor more than sixty (60) days before the date of the meeting (unless a different time is provided by law or the Articles of Incorporation), by or at the direction of the Chairperson of the Board, if there is one, the President or the Secretary, to each shareholder entitled to vote at such meeting or, for the fundamental transactions described in subsections (e)(1) to (4) below (for which the Wisconsin Business Corporation Law requires that notice be given to shareholders not entitled to vote), to all shareholders. If mailed, such notice is effective when deposited in the United States mail, and shall be addressed to the shareholder's address shown in the current record of shareholders of the corporation, with postage thereon prepaid. At least twenty (20) days' notice shall be provided if the purpose, or one of the purposes, of the meeting is to consider a plan of merger or share exchange for which shareholder approval is required by law, or the sale, lease, exchange or other disposition of all or substantially all of the corporation's property, with or without good will, otherwise than in the usual and regular course of business. (b) Adjourned Meeting. Except as provided in the next sentence, if any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be -2- fixed, then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.04, to those persons who are shareholders as of the new record date. (c) Waiver of Notice. A shareholder may waive notice in accordance with Article VI of these Bylaws. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called, and only business within the purpose described in the meeting notice may be conducted at a special shareholders' meeting. Except as otherwise provided in subsection (e) of this Section 2.04, in the Articles of Incorporation, or in the Wisconsin Business Corporation Law, the notice of an annual shareholders' meeting need not include a description of the purpose or purposes for which the meeting is called. (e) Fundamental Transactions. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the Articles of Incorporation (including any restated articles); (2) a plan of merger or share exchange for which shareholder approval is required by law; (3) the sale, lease, exchange or other disposition of all or substantially all of the corporation's property, with or without good will, otherwise than in the usual and regular course of business; (4) the dissolution of the corporation; or (5) the removal of a director, the notice must so state and in cases (1), (2) and (3) above must be accompanied by, respectively, a copy or summary of the: (1) proposed articles of amendment or a copy of the restated articles that identifies any amendment or other change; (2) proposed plan of merger or share exchange; or (3) proposed transaction for disposition of all or substantially all of the corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders and beneficial shareholders are or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Sections 180.1301 to 180.1331 of the Wisconsin Business Corporation Law. 2.05. Fixing of Record Date. The Board of Directors may fix in advance a date as the record date for one or more voting groups for any determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote, or to take any other action, such date in any case to be not more than seventy (70) days prior to the meeting or action requiring such determination of shareholders, and may fix the record date for determining shareholders entitled to a share dividend or distribution. If no record date is fixed for the determination of shareholders entitled to demand a shareholder meeting, to notice of or to vote at a meeting of shareholders, or to consent to action without a meeting, (a) the close of business on the day before the corporation receives the first written demand for a shareholder meeting, (b) the close of business on the day before the first notice of the meeting is mailed or otherwise delivered to shareholders, or (c) the close of business on the day before the first written consent to shareholder action without a meeting is received by the corporation, as the case may be, shall be the record date for the determination of shareholders. If no record date is fixed for the determination of shareholders entitled to receive a share dividend or distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation's shares), the close of business on the day on which the resolutions of the Board of -3- Directors is adopted declaring the dividend or distribution shall be the record date. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof unless the Board of Directors fixes a new record date and except as otherwise required by law. A new record date must be set if a meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 2.06. Shareholder List. The Officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete record of the shareholders entitled to notice of such meeting, arranged by class or series of shares and showing the address of and the number of shares held by each shareholder. The shareholder list shall be available at the meeting and may be inspected by any shareholder or his or her agent or attorney at any time during the meeting or any adjournment. Any shareholder or his or her agent or attorney may inspect the shareholder list beginning two (2) business days after the notice of the meeting is given and continuing to the date of the meeting, at the corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held and, subject to Section 180.1602(2)(b) 3 to 5 of the Wisconsin Business Corporation Law, may copy the list, during regular business hours and at his or her expense, during the period that it is available for inspection hereunder. The original stock transfer books and nominee certificates on file with the corporation (if any) shall be prima facie evidence as to who are the shareholders entitled to inspect the shareholder list or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum and Voting Requirements. Except as otherwise provided in the Articles of Incorporation or in the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast by shares entitled to vote as a separate voting group on a matter, represented in person or by proxy, shall constitute a quorum of that voting group for action on that matter at a meeting of shareholders. If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action unless a greater number of affirmative votes is required by the Wisconsin Business Corporation Law or the Articles of Incorporation. If the Articles of Incorporation or the Wisconsin Business Corporation Law provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one (1) voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, other than for the purpose of objecting to holding the meeting or transacting business at the meeting, it is considered present for purposes of determining whether a quorum exists for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that meeting. 2.08. Conduct of Meetings. The Chairperson of the Board, or if there is none, or in his or her absence, the President, and in the President's absence, a Vice President, in the order provided under Section 4.06 of these Bylaws, and in their absence, any person chosen by -4- the shareholders present shall call the meeting of the shareholders to order and shall act as chairperson of the meeting, and the Secretary shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote in person or by proxy appointed in writing by the shareholder or by his or her duly authorized attorney-in-fact. All proxy appointment forms shall be filed with the Secretary or other officer or agent of the corporation authorized to tabulate votes before or at the time of the meeting. Unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest, a proxy appointment may be revoked at any time. The presence of a shareholder who has filed a proxy appointment shall not of itself constitute a revocation. No proxy appointment shall be valid after eleven months from the date of its execution, unless otherwise expressly provided in the appointment form. The Board of Directors shall have the power and authority to make rules that are not inconsistent with the Wisconsin Business Corporation Law as to the validity and sufficiency of proxy appointments. 2.10. Voting of Shares. Each outstanding share shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares are enlarged, limited or denied by the Articles of Incorporation or the Wisconsin Business Corporation Law. Shares owned directly or indirectly by another corporation are not entitled to vote if this corporation owns, directly or indirectly, sufficient shares to elect a majority of the directors of such other corporation. However, the prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its Board of Directors. The number of directors of the corporation shall be three (3). The number of directors may be increased or decreased from time to time by amendment to this Section adopted by the shareholders or the Board of Directors, but no decrease shall have the effect of shortening the term of an incumbent director. 3.02. Election, Removal, Tenure and Qualifications. Unless action is taken without a meeting under Section 7.01 of these Bylaws, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a shareholders meeting at which a quorum is present; i.e., the individuals with the largest number of votes in favor of their election are elected as directors up to the maximum number of directors to be chosen in the election. Votes against a candidate are not given legal effect and are not counted as votes cast in an election of directors. In the event two (2) or more persons tie for the last vacancy to be -5- filled, a run-off vote shall be taken from among the candidates receiving the tie vote. Each director shall hold office until the next annual meeting of shareholders and until the director's successor shall have been elected or there is a decrease in the number of directors, or until his or her prior death, resignation or removal. If cumulative voting for directors is not authorized by the Articles of Incorporation, any director or directors may be removed from office by the shareholders if the number of votes cast to remove the director exceeds the number cast not to remove him or her, taken at a meeting of shareholders called for that purpose (unless action is taken without a meeting under Section 7.01 of these Bylaws), provided that the meeting notice states that the purpose, or one of the purposes, of the meeting is removal of the director. The removal may be made with or without cause unless the Articles of Incorporation or these Bylaws provide that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove that director. A director may resign at any time by delivering a written resignation to the Board of Directors, to the Chairperson of the Board (if there is one), or to the corporation through the Secretary or otherwise. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held, without other notice than this Bylaw, immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors and any committee may provide, by resolution, the time and place, either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairperson of the Board, if there is one, the President or any two (2) directors. Special meetings of any committee may be called by or at the request of the foregoing persons or the chairperson of the committee. The persons calling any special meeting of the Board of Directors or committee may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting called by them, and if no other place is fixed the place of meeting shall be the principal office the corporation in the State of Wisconsin. 3.05. Meetings by Telephone or Other Communication Technology. (a) Any or all directors may participate in a regular or special meeting or in a committee meeting of the Board of Directors by, or conduct the meeting through the use of, telephone or any other means of communication by which either: (i) all participating directors may simultaneously hear each other during the meeting or (ii) all communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors. (b) If a meeting will be conducted through the use of any means described in paragraph (a), all participating directors shall be informed that a meeting is taking -6- place at which official business may be transacted. A director participating in a meeting by any means described in paragraph (a) is deemed to be present in person at the meeting. 3.06. Notice of Meetings. Except as otherwise provided in the Articles of Incorporation or the Wisconsin Business Corporation Law, notice of the date, time and place of any special meeting of the Board of Directors and of any special meeting of a committee of the Board shall be given orally or in writing to each director or committee member at least 48 hours prior to the meeting, except that notice by mail shall be given at least 72 hours prior to the meeting. The notice need not describe the purpose of the meeting. Notice may be communicated in person, by telephone, telegraph or facsimile, or by mail or private carrier. Oral notice is effective when communicated. Written notice is effective as follows: If delivered in person, when received; if given by mail, when deposited, postage prepaid, in the United States mail addressed to the director at his or her business or home address (or such other address as the director may have designated in writing filed with the Secretary); if given by facsimile, at the time transmitted to a facsimile number at any address designated above; and if given by telegraph, when delivered to the telegraph company. 3.07. Quorum. Except as otherwise provided by the Wisconsin Business Corporation Law, a majority of the number of directors as provided in Section 3.01 shall constitute a quorum of the Board of Directors. Except as otherwise provided by the Wisconsin Business Corporation Law, a majority of the number of directors appointed to serve on a committee shall constitute a quorum of the committee. 3.08. Manner of Acting. Except as otherwise provided by the Wisconsin Business Corporation Law or the Articles of Incorporation, the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors or any committee thereof. 3.09. Conduct of Meetings. The Chairperson of the Board, or if there is none, or in his or her absence, the President, and in the President's absence, a Vice President in the order provided under Section 4.06 of these Bylaws, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall chair the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any assistant secretary or any director or other person present to act as secretary of the meeting. 3.10. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled by the shareholders or the Board of Directors. If the directors remaining in office constitute fewer than a quorum of the Board, the directors may fill a vacancy by the affirmative vote of a majority of all directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors. A vacancy that will occur at a specific later date (because of a resignation effective at a later date or otherwise) -7- may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs. 3.11. Compensation. The Board of Directors, irrespective of any personal interest of any of its members, may fix the compensation of directors. 3.12. Presumption of Assent. A director who is present and is announced as present at a meeting of the Board of Directors or a committee thereof at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless (i) the director objects at the beginning of the meeting or promptly upon his or her arrival to holding the meeting or transacting business at the meeting, or (ii) the director's dissent or abstention from the action taken is entered in the minutes of the meeting, or (iii) the director delivers his or her written dissent or abstention to the presiding officer of the meeting before the adjournment thereof or to the corporation immediately after the adjournment of the meeting, or (iv) the director dissents or abstains from the action taken, minutes of the meeting are prepared and fail to show the director's dissent or abstention from the action taken, and the director delivers to the corporation a written notice of that omission from the minutes promptly after receiving a copy of the minutes. Such right to dissent or abstain shall not apply to a director who voted in favor of such action. 3.13. Committees. Unless the Articles of Incorporation otherwise provide, the Board of Directors, by resolution adopted by the affirmative vote of a majority of all the directors then in office, may create one (1) or more committees, each committee to consist of two (2) or more directors as members, which to the extent provided in the resolution as initially adopted, and as thereafter supplemented or amended by further resolution adopted by a like vote, may exercise the authority of the Board of Directors, except that no committee may: (a) authorize distributions; (b) approve or propose to shareholders action that the Wisconsin Business Corporation Law requires be approved by shareholders; (c) fill vacancies on the Board of Directors or any of its committees, except that the Board of Directors may provide by resolution that any vacancies on a committee shall be filled by the affirmative vote of a majority of the remaining committee members; (d) amend the Articles of Incorporation; (e) adopt, amend or repeal Bylaws; (f) approve a plan of merger not requiring shareholder approval; (g) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors or (h) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares, except within limits prescribed by the Board of Directors. All members of the Board of Directors who are not members of a given committee shall be alternate members of such committee and may take the place of any absent member or members at any meeting of such committee, upon request by the Chairperson of the Board, if there is one, the President or upon request by the chairperson of such meeting. Each such committee shall fix its own rules (consistent with the Wisconsin Business Corporation Law, the Articles of Incorporation and these Bylaws) governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. Unless otherwise provided by the Board of Directors in creating a committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of -8- authority. The creation of a committee, delegation of authority to a committee or action by a committee does not relieve the Board of Directors or any of its members of any responsibility imposed on the Board of Directors or its members by law. ARTICLE IV. OFFICERS 4.01. Appointment. The principal officers shall include a President, one or more Vice Presidents (the number and designations to be determined by the Board of Directors), a Secretary and such other officers, if any, as may be deemed necessary by the Board of Directors, each of whom shall be appointed by the Board of Directors. Any two or more offices may be held by the same person. 4.02. Resignation and Removal. An officer shall hold office until he or she resigns, dies, is removed hereunder, or a different person is appointed to the office. An officer may resign at any time by delivering an appropriate written notice to the corporation. The resignation is effective when the notice is delivered, unless the notice specifies a later effective date and the corporation accepts the later effective date. Any officer may be removed by the Board of Directors with or without cause and notwithstanding the contract rights, if any, of the person removed. Except as provided in the preceding sentence, the resignation or removal is subject to any remedies provided by any contract between the officer and the corporation or otherwise provided by law. Appointment shall not of itself create contract rights. 4.03. Vacancies. A vacancy in any office because of death, resignation, removal or otherwise, shall be filled by the Board of Directors. If a resignation is effective at a later date, the Board of Directors may fill the vacancy before the effective date if the Board of Directors provides that the successor may not take office until the effective date. 4.04. Chairperson of the Board. The Board of Directors may at its discretion appoint a Chairperson of the Board. The Chairperson of the Board, if there is one, shall preside at all meetings of the shareholders and Board of Directors, and shall carry out such other duties as directed by the Board of Directors. 4.05. President. The President shall be the principal executive officer and, subject to the control and direction of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He or she shall, in the absence of the Chairperson of the Board (if one is appointed), preside at all meetings of the shareholders and of the Board of Directors. The President shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employes of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employes shall hold office at the discretion of the President. The President shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of -9- Directors; and, except as otherwise provided by law or directed by the Board of Directors, the President may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his or her place and stead. In general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. 4.06. Vice Presidents. In the absence of the President, or in the event of the President's death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, a Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the President or the Board of Directors. The execution of any instrument of the corporation by any Vice President shall be conclusive evidence, as to third parties, of the Vice President's authority to act in the stead of the President. 4.07. Secretary. The Secretary shall: (a) keep (or cause to be kept) regular minutes of all meetings of the shareholders, the Board of Directors and any committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents which are authorized to be executed on behalf of the corporation under its seal; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 4.08. Treasurer. If the Board of Directors appoints a Treasurer, the Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected by the corporation; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 4.09. Assistants and Acting Officers. The Board of Directors and the President shall have the power to appoint any person to act as assistant to any officer, or as -10- agent for the corporation in the officer's stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors or President shall have the power to perform all the duties of the office to which that person is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors or the President. 4.10. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the corporation. ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER 5.01. Certificates for Shares. All shares of this corporation shall be represented by certificates. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. At a minimum, a share certificate shall state on its face the name of the corporation and that it is organized under the laws of the State of Wisconsin, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, that the certificate represents. If the corporation is authorized to issue different classes of shares or different series within a class, the front or back of the certificate must contain either (a) a summary of the designations, relative rights, preferences and limitations applicable to each class, and the variations in the rights, preferences and limitations determined for each series and the authority of the Board of Directors to determine variations for future series, or (b) a conspicuous statement that the corporation will furnish the shareholder the information described in clause (a) on request, in writing and without charge. Such certificates shall be signed, either manually or in facsimile, by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 5.05. 5.02. Signature by Former Officers. If an officer or assistant officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, has ceased to be such officer or assistant officer before such certificate is issued, the certificate may be issued by the corporation with the same effect as if that person were still an officer or assistant officer at the date of its issue. 5.03. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer, and unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the shareholder, the corporation may treat the registered owner of such shares as the person -11- exclusively entitled to vote, to receive notifications and otherwise to have and exercise all the rights and power of an owner. The corporation may require reasonable assurance that all transfer endorsements are genuine and effective and in compliance with all regulations prescribed by or under the authority of the Board of Directors. 5.04. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction upon the transfer of such shares imposed by the corporation or imposed by any agreement of which the corporation has written notice. 5.05. Lost, Destroyed or Stolen Certificates. Where the owner claims that his or her certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) if required by the corporation, files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors. 5.06. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time and determined to be adequate by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration may consist of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services to be performed, or other securities of the corporation. When the corporation receives the consideration for which the Board of Directors authorized the issuance of shares, such shares shall be deemed to be fully paid and nonassessable by the corporation. 5.07. Stock Regulations. The Board of Directors shall have the power and authority to make all such rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more registrars. ARTICLE VI. WAIVER OF NOTICE 6.01. Shareholder Written Waiver. A shareholder may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or these Bylaws before or after the date and time stated in the notice. The waiver shall be in writing and signed by the shareholder entitled to the notice, shall contain the same information that would have been required in the notice under the Wisconsin Business Corporation Law except that the time and place of meeting need not be stated, and shall be delivered to the corporation for inclusion in the corporate records. -12- 6.02. Shareholder Waiver by Attendance. A shareholder's attendance at a meeting, in person or by proxy, waives objection to both of the following: (a) Lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting. (b) Consideration of a particular matter at the meeting that is not within the purpose described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 6.03. Director Written Waiver. A director may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or the Bylaws before or after the date and time stated in the notice. The waiver shall be in writing, signed by the director entitled to the notice and retained by the corporation. 6.04. Director Waiver by Attendance. A director's attendance at or participation in a meeting of the Board of Directors or any committee thereof waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly upon his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. ARTICLE VII. ACTION WITHOUT MEETINGS 7.01. Shareholder Action Without Meeting. Action required or permitted by the Wisconsin Business Corporation Law to be taken at a shareholders' meeting may be taken without a meeting (a) by all shareholders entitled to vote on the action, or (b) if the Articles of Incorporation so provide (and except with respect to an election of directors for which shareholders may vote cumulatively) by shareholders who would be entitled to vote at a meeting shares with voting power sufficient to cast not less than the minimum number (or, in the case of voting by voting groups, the minimum numbers) of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the shareholders consenting thereto and delivered to the corporation for inclusion in its corporate records. A consent hereunder has the effect of a meeting vote and may be described as such in any document. The Wisconsin Business Corporation Law requires that notice of the action be given to certain shareholders and specifies the effective date thereof and the record date in respect thereto. 7.02. Director Action Without Meeting. Unless the Articles of Incorporation provide otherwise, action required or permitted by the Wisconsin Business Corporation law to be taken at a Board of Directors meeting or committee meeting may be taken without a meeting if the action is taken by all members of the Board or committee. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and retained by the corporation. Action taken hereunder is effective when the last director signs the consent, unless the consent specifies a different effective date. A consent signed -13- hereunder has the effect of a unanimous vote taken at a meeting at which all directors or committee members were present, and may be described as such in any document. ARTICLE VIII. INDEMNIFICATION 8.01. Indemnification for Successful Defense. Within twenty (20) days after receipt of a written request pursuant to Section 8.03, the corporation shall indemnify a director or officer, to the extent he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation. 8.02. Other Indemnification. (a) In cases not included under Section 8.01, the corporation shall indemnify a director or officer against all liabilities and expenses incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the corporation, unless liability was incurred because the director or officer breached or failed to perform a duty he or she owes to the corporation and the breach or failure to perform constitutes any of the following: (1) A willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest. (2) A violation of criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful. (3) A transaction from which the director or officer derived an improper personal profit. (4) Willful misconduct. (b) Determination of whether indemnification is required under this Section shall be made pursuant to Section 8.05. (c) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director or officer is not required under this Section. 8.03. Written Request. A director or officer who seeks indemnification under Sections 8.01 or 8.02 shall make a written request to the corporation. 8.04. Nonduplication. The corporation shall not indemnify a director or officer under Sections 8.01 or 8.02 if the director or officer has previously received -14- indemnification or allowance of expenses from any person, including the corporation, in connection with the same proceeding. However, the director or officer has no duty to look to any other person for indemnification. 8.05. Determination of Right to Indemnification. (a) Unless otherwise provided by the Articles of Incorporation or by written agreement between the director or officer and the corporation, the director or officer seeking indemnification under Section 8.02 shall select one of the following means for determining his or her right to indemnification: (1) By a majority vote of a quorum of the Board of Directors consisting of directors not at the time parties to the same or related proceedings. If a quorum of disinterested directors cannot be obtained, by majority vote of a committee duly appointed by the Board of Directors and consisting solely of two (2) or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee. (2) By independent legal counsel selected by a quorum of the Board of Directors or its committee in the manner prescribed in sub. (1) or, if unable to obtain such a quorum or committee, by a majority vote of the full Board of Directors, including directors who are parties to the same or related proceedings. (3) By a panel of three (3) arbitrators consisting of one arbitrator selected by those directors entitled under sub. (2) to select independent legal counsel, one arbitrator selected by the director or officer seeking indemnification and one arbitrator selected by the two (2) arbitrators previously selected. (4) By an affirmative vote of shares represented at a meeting of shareholders at which a quorum of the voting group entitled to vote thereon is present. Shares owned by, or voted under the control of, persons who are at the time parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination. (5) By a court under Section 8.08. (6) By any other method provided for in any additional right to indemnification permitted under Section 8.07. (b) In any determination under (a), the burden of proof is on the corporation to prove by clear and convincing evidence that indemnification under Section 8.02 should not be allowed. -15- (c) A written determination as to a director's or officer's indemnification under Section 8.02 shall be submitted to both the corporation and the director or officer within 60 days of the selection made under (a). (d) If it is determined that indemnification is required under Section 8.02, the corporation shall pay all liabilities and expenses not prohibited by Section 8.04 within ten (10) days after receipt of the written determination under (c). The corporation shall also pay all expenses incurred by the director or officer in the determination process under (a). 8.06. Advance of Expenses. Within ten (10) days after receipt of a written request by a director or officer who is a party to a proceeding, the corporation shall pay or reimburse his or her reasonable expenses as incurred if the director or officer provides the corporation with all of the following: (1) A written affirmation of his or her good faith belief that he or she has not breached or failed to perform his or her duties to the corporation. (2) A written undertaking, executed personally or on his or her behalf, to repay the allowance to the extent that it is ultimately determined under Section 8.05 that indemnification under Section 8.02 is not required and that indemnification is not ordered by a court under Section 8.08(b)(2). The undertaking under this subsection shall be an unlimited general obligation of the director or officer and may be accepted without reference to his or her ability to repay the allowance. The undertaking may be secured or unsecured. 8.07. Nonexclusivity. (a) Except as provided in (b), Sections 8.01, 80.2 and 8.06 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following: (1) The Articles of Incorporation. (2) A written agreement between the director or officer and the corporation. (3) A resolution of the Board of Directors. (4) A resolution, after notice, adopted by a majority vote of all of the corporation's voting shares then issued and outstanding. (b) Regardless of the existence of an additional right under (a), the corporation shall not indemnify a director or officer, or permit a director or officer to retain any allowance of expenses unless it is determined by or on behalf of the corporation that the director or officer did not breach or fail to perform a duty he or she -16- owes to the corporation which constitutes conduct under Section 8.02(a)(1), (2), (3) or (4). A director or officer who is a party to the same or related proceeding for which indemnification or an allowance of expenses is sought may not participate in a determination under this subsection. (c) Sections 8.01 to 8.13 do not affect the corporation's power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances. (1) As a witness in a proceeding to which he or she is not a party. (2) As a plaintiff or petitioner in a proceeding because he or she is or was an employe, agent, director or officer of the corporation. 8.08. Court-Ordered Indemnification. (a) Except as provided otherwise by written agreement between the director or officer and the corporation, a director or officer who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. Application shall be made for an initial determination by the court under Section 8.05(a)(5) or for review by the court of an adverse determination under Section 8.05(a)(1), (2), (3), (4) or (6). After receipt of an application, the court shall give any notice it considers necessary. (b) The court shall order indemnification if it determines any of the following: (1) That the director or officer is entitled to indemnification under Sections 8.01 or 8.02. (2) That the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether indemnification is required under Section 8.02. (c) If the court determines under (b) that the director or officer is entitled to indemnification, the corporation shall pay the director's or officer's expenses incurred to obtain the court-ordered indemnification. 8.09. Indemnification and Allowance of Expenses of Employes and Agents. The corporation shall indemnify an employe of the corporation who is not a director or officer of the corporation, to the extent that he or she has been successful on the merits or otherwise in defense of a proceeding, for all reasonable expenses incurred in the proceeding if the employe was a party because he or she was an employe of the corporation. In addition, the corporation may indemnify and allow reasonable expenses of an employe or agent who is not a director or -17- officer of the corporation to the extent provided by the Articles of Incorporation or these Bylaws, by general or specific action of the Board of Directors or by contract. 8.10. Insurance. The corporation may purchase and maintain insurance on behalf of an individual who is an employe, agent, director or officer of the corporation against liability asserted against or incurred by the individual in his or her capacity as an employe, agent, director or officer, regardless of whether the corporation is required or authorized to indemnify or allow expenses to the individual against the same liability under Sections 8.01, 8.02, 8.06, 8.07 and 8.09. 8.11. Securities Law Claims. (a) Pursuant to the public policy of the State of Wisconsin, the corporation shall provide indemnification and allowance of expenses and may insure for any liability incurred in connection with a proceeding involving securities regulation described under (b) to the extent required or permitted under Sections 8.01 to 8.10. (b) Sections 8.01 to 8.10 apply, to the extent applicable to any other proceeding, to any proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities, securities brokers or dealers, or investment companies or investment advisers. 8.12. Liberal Construction. In order for the corporation to obtain and retain qualified directors, officers and employes, the foregoing provisions shall be liberally administered in order to afford maximum indemnification of directors, officers and, where Section 8.09 of these Bylaws applies, employes. The indemnification above provided for shall be granted in all applicable cases unless to do so would clearly contravene law, controlling precedent or public policy. 8.13. Definitions Applicable to this Article. For purposes of this Article: (a) "Affiliate" shall include, without limitation, any corporation, partnership, joint venture, employe benefit plan, trust or other enterprise that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the corporation. (b) "Corporation" means this corporation and any domestic or foreign predecessor of this corporation where the predecessor corporation's existence ceased upon the consummation of a merger or other transaction. (c) "Director or officer" means any of the following: (1) An individual who is or was a director or officer of this corporation. -18- (2) An individual who, while a director or officer of this corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, member of any governing or decision-making committee, employe or agent of another corporation or foreign corporation, partnership, joint venture, trust or other enterprise. (3) An individual who, while a director or officer of this corporation, is or was serving an employe benefit plan because his or her duties to the corporation also impose duties on, or otherwise involve services by, the person to the plan or to participants in or beneficiaries of the plan. (4) Unless the context requires otherwise, the estate or personal representative of a director or officer. For purposes of this Article, it shall be conclusively presumed that any director or officer serving as a director, officer, partner, trustee, member of any governing or decision-making committee, employe or agent of an affiliate shall be so serving at the request of the corporation. (d) "Expenses" include fees, costs, charges, disbursements, attorney fees and other expenses incurred in connection with a proceeding. (e) "Liability" includes the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including an excise tax assessed with respect to an employe benefit plan, and reasonable expenses. (f) "Party" includes an individual who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding. (g) "Proceeding" means any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person. ARTICLE IX. SEAL The Board of Directors may provide a corporate seal which may be circular in form and have inscribed thereon the name of the corporation and the state of incorporation and the words "Corporate Seal." ARTICLE X. AMENDMENTS 10.01. By Shareholders. These Bylaws may be amended or repealed and new Bylaws may be adopted by the shareholders by the vote provided in Section 2.07 of these Bylaws or as specifically provided below. If authorized by the Articles of Incorporation, the shareholders may adopt or amend a Bylaw that fixes a greater or lower quorum requirement or -19- a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided by in the Wisconsin Business Corporation Law. The adoption or amendment of a Bylaw that adds, changes or deletes a greater or lower quorum requirement or a greater voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect. 10.02. By Directors. Except as the Articles of Incorporation may otherwise provide, these Bylaws may also be amended or repealed and new Bylaws may be adopted by the Board of Directors by the vote provided in Section 3.08, but (a) no Bylaw adopted by the shareholders shall be amended, repealed or readopted by the Board of Directors if the Bylaw so adopted so provides and (b) a Bylaw adopted or amended by the shareholders that fixes a greater or lower quorum requirement or a greater voting requirement for the Board of Directors than otherwise is provided in the Wisconsin Business Corporation Law may not be amended or repealed by the Board of Directors unless the Bylaw expressly provides that it may be amended or repealed by a specified vote of the Board of Directors. Action by the Board of Directors to adopt or amend a Bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect, unless a different voting requirement is specified as provided by the preceding sentence. A Bylaw that fixes a greater or lower quorum requirement or a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided in the Wisconsin Business Corporation Law may not be adopted, amended or repealed by the Board of Directors. 10.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the Bylaws then in effect but is taken or authorized by a vote that would be sufficient to amend the Bylaws so that the Bylaws would be consistent with such action, shall be given the same effect as though the Bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized. -20- EX-3.9 8 manx3-9.txt ARTICLES OF MANITOWOC MEC, INC. Exhibit 3.9 ARTICLES OF INCORPORATION Of MANITOWOC MEC, INC. I, the undersigned, for the purpose of forming a corporation under the General Corporation Law of the State of Nevada, do hereby certify: ARTICLE I. Name The name of the corporation shall be Manitowoc MEC, Inc. ARTICLE II. Registered Office; Resident Agent The corporation's registered office in the State of Nevada is One East First Street, Reno, Nevada 89501. The name of the corporation's resident agent at such address is The Corporation Trust Company of Nevada. ARTICLE III. Capital Stock The aggregate number of shares which the corporation shall have authority to issue is 25,000, of a single class designated as "Common Stock," having a par value of $0.01 per share. ARTICLE IV. Governing Body The governing body of the corporation shall consist of directors, the number of which may be fixed from time to time by the By-laws of the Corporation. The initial Board of Directors shall consist of three (3) members, whose names and addresses are as follows: Name Address Fred M. Butler 700 East Magnolia Avenue Suite B Manitowoc, WI 54221 Robert R. Friedl 700 East Magnolia Avenue Suite B Manitowoc, WI 54221 E. Dean Flynn 700 East Magnolia Avenue Suite B Manitowoc, WI 54221 ARTICLE V. Incorporator The name and address of the sole incorporator executing these Articles of Incorporation are as follows: Name Address Thomas A. Simonis c/o Quarles & Brady 411 East Wisconsin Avenue Milwaukee, WI 53202 EX-3.10 9 manx3-10.txt BYLAWS OF MANITOWOC MEC, INC. Exhibit 3.10 BY-LAWS OF MANITOWOC MEC, INC. (a Nevada corporation) INTRODUCTION - VARIABLE REFERENCES Date of Adoption of these By-Laws: December 7, 1993 Date of Incorporation: December 7, 1993 0.01. The annual shareholders' meeting will be held on the first Monday in November. * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): three (3). * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 72 hours if by mail; and (b) Not less than 48 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. *These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Officers. The corporation shall establish a principal business office in the State of Nevada and shall maintain a resident agent in charge of such office. The corporation may have such principal and other business offices, either within or without the State of Nevada, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Nevada General Corporation Law to be maintained in the State of Nevada shall be identical with the principal office in the State of Nevada, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days, before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Nevada, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or the articles of incorporation, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. Such request shall state the purpose or purposes of the proposed meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Nevada, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Nevada, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Nevada or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by the vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) no more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. Notice sent to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, sixty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President, in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 2.09. Proxies. At any meeting of the shareholders, any shareholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the Secretary of the corporation. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the Board of Directors or by the by-laws of such other corporation. (b) Legal Representatives or Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the name of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. 2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Nevada General Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13. Shareholders' Action Without Meeting. Except as may be otherwise required by the laws of the State of Nevada, any action, except election of directors, which may be taken by the vote of shareholders at a meeting, may be taken without a meeting if authorized by the written consent of shareholders holding at least a majority of the voting power; provided, however, that if any greater proportion of voting power is required for such action at a meeting, then such greater proportion of written consent shall be required. In no instance where action is authorized by such written consent need a meeting of shareholders be called or noticed. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote on written consent of the holders of two-thirds of the outstanding shares entitled to vote for the election of such directors. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Nevada or shareholders of the corporation, but at least one director must be a citizen of the United States of America. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Nevada for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Nevada as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Nevada. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall he deemed to be delivered when deposited in the United States Mail so addressed, with postage thereon prepaid. If notice is given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President, in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of one or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting or such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities, shall keep regular minutes of their proceedings and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one), a President, one or more Vice Presidents (if the Board of Directors determines to elect one or more), one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by resolution of the Board of Directors and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act, then the Senior Vice President, or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which address shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS: SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by This Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. Title to a certificate and to the shares represented thereby can be transferred only as provided by the Uniform Stock Transfer Act, Chapter 79 of the Nevada Statutes and the acts amendatory thereof and supplementary thereto. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors Shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Nevada as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02. Indemnity of Officers and Directors. Every person who is or was a director or officer of the corporation, and any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor, shall (together with the heirs, executors and administrators of such person) be indemnified by the corporation against all costs, damages and expenses asserted against, incurred by or imposed upon him in connection with or resulting from any claim, action, suit or proceeding, including criminal proceedings, to which he is made or threatened to be made a party by reason of his being or having been such director or officer, except in relation to matters as to which a recovery shall be had against him by reason of his having been finally adjudged in such action, suit or proceeding to have been guilty of fraud in the performance of his duty as such officer or director. This indemnity shall include reimbursement of amounts and expenses incurred and paid in settling any such claim, action, suit or proceeding. In the case of a criminal action, suit or proceeding, a conviction or judgment (whether based on a plea of guilty or nolo contendere or its equivalent, or after trial) shall not be deemed an adjudication that such director or officer is guilty of fraud in the performance of his duties, if such director or officer was acting in good faith in what he considered to be the best interests of the corporation and with no reasonable cause to believe that the action was illegal. The corporation, by its Board of Directors, may indemnify in like manner, or with any limitations, any employee or former employee of the corporation with respect to any action taken or not taken in his capacity as such employee. The foregoing rights of indemnification shall be in addition to all rights to which officers, directors or employees may be entitled as a matter of law. 7.03. Transactions With the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, providing that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly and severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if 1) the fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or 2) the fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or 3) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation, the year when incorporated, and the words "Nevada" and "Corporate Seal". 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.11 10 manx3-11.txt ARTICLES OF MANITOWOC RE-MANUFACTURING, INC. Exhibit 3.11 ARTICLES OF INCORPORATION OF MANITOWOC RE-MANUFACTURING, INC. ARTICLE I. Name The name of the corporation shall be Manitowoc Re-Manufacturing, Inc. ARTICLE II. Purpose The purpose for which this corporation is organized is to engage in any lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes. ARTICLE III. Capital Stock A. The aggregate number of shares which this corporation shall have authority to issue is 50,000 of a single class designated as "Common Stock," having a par value of $0.01 per share. B. No holder of any stock of the corporation shall have any preemptive or other subscription rights nor be entitled, as of right, to purchase or subscribe for any part of the unissued stock of this corporation or of any additional stock issued by reason of any increase in authorized capital stock of this corporation or other securities, whether or not convertible into stock of the corporation. ARTICLE IV. Limitations on Transfer of Stock The transferability of any of the stock of the corporation may be restricted from time to time by the shareholders by appropriate provision in the by-laws or by agreement or agreements entered into by any shareholder or shareholders with the corporation and/or any other shareholder or shareholders, and/or with any third persons, and the shares of stock of such shareholder or shareholders thereupon shall be subject to such by-laws, agreement or agreements and shall be transferable only upon proof of compliance therewith; provided, however, that such by-laws, agreement or agreements shall be filed with the corporation and reference thereto placed on the certificate or certificates of stock. ARTICLE V. Registered Office and Agent The registered office of the corporation is 500 South 16th Street, P.O. Box 66, Manitowoc, County of Manitowoc, Wisconsin 54220 and the name of the registered agent at such office is P. Ralph Helm. ARTICLE VI. Directors The number of Directors may be fixed from time to time by the by-laws but shall not be less than the minimum number allowed by Wisconsin law. The Directors need not be shareholders and officers need not be Directors. The initial Board of Directors shall consist of three (3) members whose names are as follows: P. Ralph Helm Frank E. Stevens G. Michael Decker ARTICLE VII. Incorporator The name and address of the Incorporator is John M. Olson, 2100 Marine Plaza, Milwaukee, Wisconsin 53202. ARTICLE VIII. Purchase of Shares by Corporation The corporation is authorized by action of the Board of Directors, without the consent of the shareholders, to purchase, take, receive or otherwise acquire shares of the capital stock of the corporation, subject to the applicable provisions of Wisconsin law. ARTICLE IX. Recording This document shall be recorded in Manitowoc County, Wisconsin. EX-3.12 11 manx3-12.txt BYLAWS OF MANITOWOC RE-MANUFACTURING, INC. Exhibit 3.12 BY-LAWS OF MANITOWOC RE-MANUFACTURING, INC. (a Wisconsin corporation) INTRODUCTION - VARIABLE REFERENCES Date of Adoption of these By-Laws: December 7, 1993 Date of Incorporation: July 27, 1987 0.01. The annual shareholders' meeting (see Section 2.01): First Monday November 1988 ---------------- -------------- -------------- ------------- (Week) (Day) (Month) (First Year) * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): three (3). * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 48 hours if by mail; and (b) Not less than 24 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. *These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Officers. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Wisconsin, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders but in no event shall a quorum consist of less than one-third of the shares entitled to vote at the meeting. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote by proxy appointed in writing by shareholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. The Board of Directors shall have the power and authority to make rules establishing presumptions as to the validity and sufficiency of proxies. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the board of directors or by the by-laws of such other corporation. (b) Legal Representatives or Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the name of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. 2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Wisconsin Business Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote of a majority of the outstanding shares entitled to vote for the election of such director, taken at a meeting of shareholders called for that purpose. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Wisconsin. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of three or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the Resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one); President, one or more Vice Presidents, one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President; Secretary; and Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of Directors; and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act then the Senior Vice President or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which address shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by This Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificate for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02. Transactions With the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, providing that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly and severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if 1) the fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or 2) the fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or 3) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. 7.03. Reimbursement of Disallowed Expense. In the event any payment (either as compensation, interest, rent, expense reimbursement or otherwise) to any officer, director or shareholder which is claimed as a deduction by this corporation for federal income tax purposes shall subsequently be determined not to be deductible in whole or in part by this corporation, such officer, director, or shareholder as the case may be, shall reimburse the corporation for the amount of such payment so disallowed provided that this provision shall not apply to any expense where the Board of Directors, in its sole discretion, determines such disallowance (including any concession of such issue by the corporation in connection with the settlement of other issues in a disputed case) is manifestly unfair and contrary to the facts. For purposes of this provision, any such payment shall be determined not to be deductible when and only when either (a) the same may have been determined by a court of competent jurisdiction and either the corporation shall not have appealed from such determination or the time for perfecting an appeal shall have expired or (b) such disallowed deduction shall constitute or be contained in a settlement with the Internal Revenue Service which settlement may have been authorized by the Board of Directors. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation and the words "Corporate Seal, Wisconsin". 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.13 12 manx3-13.txt ARTICLES OF ENVIRONMENTAL REHAB, INC. Exhibit 3.13 ARTICLES OF INCORPORATION OF ENVIRONMENTAL REHAB, INC. (a Wisconsin Corporation) --------------------------- These Articles of Incorporation are executed by the undersigned for the purpose of forming a Wisconsin corporation under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes. ARTICLE I. Name The name of the corporation is Environmental Rehab, Inc. ARTICLE II. Purpose The purpose for which this corporation is organized is to engage in any lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes. ARTICLE III. Capital Stock A. The aggregate number of shares which this corporation shall have authority to issue is 56,000 of a single class designated as "Common Stock," having a par value of $1.00 per share. B. No shareholder of the corporation shall have any preemptive or other subscription rights nor be entitled, as of right, to purchase or subscribe for any part of the unissued stock of this corporation or of any additional stock issued by reason of any increase in authorized capital stock of this corporation or other securities, whether or not convertible into stock of the corporation. ARTICLE IV. Limitations on Transfer of Stock The transferability of any of the stock of the corporation may be restricted from time to time by the shareholders by appropriate provision in the by-laws or by agreement or agreements entered into by any shareholder or shareholders with the corporation and/or any other shareholder or shareholders, and/or with any third persons, and the shares of stock of such shareholder or shareholders thereupon shall be subject to such by-laws, agreement or agreements and shall be transferable only upon proof of compliance therewith; provided, however, that such by-laws, agreement or agreements shall be filed with the corporation and reference thereto placed on the certificate or certificates of stock. ARTICLE V. Registered Office and Agent The registered office of the corporation is located at 222 West Washington Avenue, Madison, County of Dane, Wisconsin 53703 and the name of the registered agent at such office is CT Corporation System. ARTICLE VI. Directors The number of directors may be fixed from time to time by the by-laws but shall not be less than the minimum number allowed by Wisconsin law. The directors need not be shareholders and officers need not be directors. The initial Board of Directors shall consist of three (3) members whose names are set forth below: P. Ralph Helm Frank E. Stevens G. Michael Decker ARTICLE VII. Incorporator The Incorporator is Thomas E. Lange, whose address is 111 East Wisconsin, Suite 2100, Milwaukee, Wisconsin 53202. ARTICLE VIII. Purchase of Shares by Corporation The corporation is authorized by action of the Board of Directors, without the consent of the shareholders, to purchase, take, receive or otherwise acquire shares of the capital stock of the corporation, subject to the applicable provisions of Wisconsin law. ARTICLE IX. Recording This document shall be recorded in Dane County, Wisconsin. EX-3.14 13 manx3-14.txt BYLAWS OF ENVIRONMENTAL REHAB, INC. Exhibit 3.14 BY-LAWS OF ENVIRONMENTAL REHAB, INC. (a Wisconsin corporation) INTRODUCTION - VARIABLE REFERENCES Effective Date of Adoption of these By-Laws: Date of Incorporation: November 23, 1988 0.01. Date of annual shareholders' meeting (see Section 2.01): First Monday November 1989 ------------- --------- ------------- ---------- (Week) (Day) (Month) (First Year) * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): Three (3). * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 48 hours if by mail, and * (b) Not less than 24 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. *These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Wisconsin, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders but in no event shall a quorum consist of less than one-third of the shares entitled to vote at the meeting. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote by proxy appointed in writing by shareholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. The Board of Directors shall have the power and authority to make rules establishing presumptions as to the validity and sufficiency of proxies. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the board of directors or by the by-laws of such other corporation. (b) Legal Representatives or Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the name of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. (h) Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Wisconsin Business Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.12. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote of a majority of the outstanding shares entitled to vote for the election of such director, taken at a meeting of shareholders called for that purpose. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Wisconsin. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of three or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the Resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one); President, one or more Vice Presidents, one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President; Secretary; and Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of Directors; and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act then the Senior Vice President or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which address shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and, when required, by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by This Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificate for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS; LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors. No director shall be liable to the corporation, its shareholders, or any person asserting rights on behalf of the corporation or its shareholders, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his status as a director, unless the person asserting liability proves that the breach or failure to perform constitutes (a) a willful failure to deal fairly with the corporation in connection with the matter in which the director has a material conflict of interest, (b) a violation of criminal law, unless the director had reasonable cause to believe his conduct was lawful or no reasonable cause to believe his conduct was unlawful, (c) a transaction from which the director derived an improper personal profit, or (d) willful misconduct. 7.02. Indemnity of Directors and Officers. The corporation shall indemnify a director or officer, to the extent he has been successful on the merits or otherwise in the defense of any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person, for all reasonable expenses, including fees, costs, charges, disbursements and attorney fees, incurred in the proceeding, provided the director or officer was a party because he is a director or officer of the corporation, and in all other cases, the corporation shall indemnify a director or officer against liability, including judgments, settlements, penalties, assessment, forfeitures, fines and reasonable expenses, incurred by the director or officer in the proceeding, provided the director or officer was a party because he is a director or officer of the corporation, unless the liability was incurred because the director or officer breached or failed to perform a duty he owes to the corporation and the breach or failure to perform constitutes (a) a willful failure to deal fairly with the corporation in connection with the matter in interest, (b) a violation of criminal law, unless the director or officer had reasonable cause to believe his conduct was lawful or no reasonable cause to believe his conduct was unlawful, (c) a transaction from which the director or officer derived an improper personal profit, or (d) willful misconduct. The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, shall not, by itself, create a presumption that indemnification of the director or officer is not required under this by-law. No indemnification is required under this by-law to the extent the officer or director has previously received indemnification or allowance of expenses from any person, including the corporation, in connection with the same proceeding. Determination of whether indemnification is required under this by-law shall be made by the means provided pursuant to Section 180.046 of the Wisconsin Business Corporation Law. The corporation, by its Board of Directors, may indemnify in a like manner, or with any limitations, any employee or agent of the corporation who is not a director or officer with respect to any action taken or not taken in his capacity as such employee or agent. The foregoing rights of indemnification shall be in addition to all rights to which directors, officers, employees or agents may be entitled as a matter of law, by resolution of the Board of Directors, or by written agreement with the corporation. All terms used in this Section 7.02 for which a definition is provided in Section 180.042 of the Wisconsin Business Corporation law and not otherwise herein defined shall have the meaning set forth in said statute. 7.03. Maintenance of Insurance. The corporation may, by its Board of Directors, purchase and maintain insurance on behalf of any person who is a director, officer, employee or agent of the corporation against liability asserted against and incurred by the person in his capacity as a director, officer, employee or agent, or arising from his status as a director, officer, employee or agent, regardless of whether the corporation is required or authorized to indemnify the person against the same liability. 7.04. Transactions With the Corporation. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his, her or their votes are counted for such purpose, if (a) the fact of such relationship or interest is disclosed or known to the Board of Directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or (b) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation and the words "Corporate Seal, Wisconsin". 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.15 14 manx3-15.txt ARTICLES OF NORTH CENTRAL CRANE Exhibit 3.15 ARTICLES OF INCORPORATION OF NORTH CENTRAL CRANE & EXCAVATOR SALES CORP. WE, THE UNDERSIGNED, having associated ourselves together for the purpose of forming a corporation under the general corporation laws of the State of Nevada, do hereby certify: I The name of said Corporation shall be NORTH CENTRAL CRANE & EXCAVATOR SALES CORP. II The location of said Corporation's principal place of business and office in the State of Nevada is c/o The Prentice-Hall Corporation System, Nevada, Inc., 402 North Carson Street, Carson City, Nevada 89701. The Corporation may also have one or more offices outside of the State of Nevada, where the books of the Corporation may be kept and meetings of Directors and Stockholders may be held, as may be determined by the Board of Directors. III The purpose of the Corporation is to engage in any lawful activity. 2 IV The amount of the total authorized capital stock of this Corporation is ONE HUNDRED THOUSAND DOLLARS ($100,000.00) divided into TEN THOUSAND (10,000) SHARES OF common stock of the par value of TEN DOLLARS ($10.00) per share. V The members of the governing Board of this Corporation shall be styled DIRECTORS, and shall be not less than three (3) in number, which may be increased as provided for in the By-Laws. The names and post office addresses of the first Board of Directors, which shall consist of three (3) members, are as follows: NAME ADDRESS John D. West, Chairman 915 Memorial Drive Manitowoc, WI 54220 P. Ralph Helm 1732 Blue Heron Road Manitowoc, WI 54220 Charles C. West 1515 Michigan Avenue Manitowoc, WI 54220 VI The capital stock of this Corporation after the payment of the subscription price, or the value thereof, shall be non-assessable. VII The names and post office address of each of the incorporators signing these Articles of Incorporation is as follows: NAME ADDRESS Jean E. Trompeter 2100 Marine Plaza Milwaukee, WI 53202 John F. Emanuel 2100 Marine Plaza Milwaukee, WI 53202 John C. Goheen 2100 Marine Plaza Milwaukee, WI 53202 VIII This Corporation shall have a perpetual existence. IX The Stockholders and Directors shall have the power to hold their meetings, and keep the books, documents and papers of this Corporation outside of the State of Nevada at such places as from time to time may be designated by the By-Laws, or by Resolution of the Stockholders or Directors, except as otherwise required by the laws of the State of Nevada. 3 EX-3.16 15 manx3-16.txt BYLAWS OF NORTH CENTRAL CRANE Exhibit 3.16 BY-LAWS OF NORTH CENTRAL CRANE & EXCAVATOR SALES CORP. (a Nevada corporation) INTRODUCTION - REFERENCES Date of Adoption of these By-Laws: June 20, 1980 Date of Incorporation: June 18, 1980 0.01. Date of annual shareholders' meeting (see Section 2.01): Second Wednesday November 1980 -------------- ------------- ------------- ---------- (Week) (Day) (Month) (First Year) * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): three (3) * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 48 hours if by mail, and * (b) Not less than 24 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. *These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Offices. The corporation shall establish a principal business office in the State of Nevada and shall maintain a resident agent in charge of such office. The corporation may have such principal and other business offices, either within or without the State of Nevada, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Nevada General Corporation Law to be maintained in the State of Nevada shall be identical with the principal office in the State of Nevada, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Nevada such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or the articles of incorporation, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. Such request shall state the purpose or purposes of the proposed meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Nevada, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Nevada, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Nevada or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. Notice sent to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, sixty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 2.09. Proxies. At any meeting of the shareholders, any shareholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the Secretary of the corporation. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the board of directors or by the by-laws of such other corporation. (b) Legal Representatives or Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the share so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the name of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. 2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Nevada General Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13. Shareholders' Action Without Meeting. Except as may be otherwise required by the laws of the State of Nevada, any action, except election of directors, which may be taken by the vote of shareholders at a meeting, may be taken without a meeting if authorized by the written consent of shareholders holding at least a majority of the voting power; provided, however, that if any greater proportion of voting power is required for such action at a meeting, then such greater proportion of written consent shall be required. In no instance where action is authorized by such written consent need a meeting of shareholders be called or noticed. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote on written consent of the holders of two-thirds of the outstanding shares entitled to vote for the election of such directors. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Nevada or shareholders of the corporation, but at least one director must be a citizen of the United States of America. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Nevada for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Nevada as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Nevada. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of one or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the Resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities shall keep regular minutes of their proceedings and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one), a President, one or more Vice Presidents, one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of Directors; and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act then the Senior Vice President or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal, if any, of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS: SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by This Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. Title to a certificate and to the shares represented thereby can be transferred only as provided by the Uniform Stock Transfer Act, Chapter 79 of the Nevada Statutes and the acts amendatory thereof and supplementary thereto. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Nevada as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS; LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02. Indemnity of Officers and Directors. Every person who is or was a director or officer of the corporation, and any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor, shall (together with the heirs, executors and administrators of such person) be indemnified by the corporation against all costs, damages and expenses asserted against, incurred by or imposed upon him in connection with or resulting from any claim, action, suit or proceeding, including criminal proceedings, to which he is made or threatened to be made a party by reason of his being or having been such director or officer, except in relation to matters as to which a recovery shall be had against him by reason of his having been finally adjudged in such action, suit or proceeding to have been guilty of fraud in the performance of his duty as such officer or director. This indemnity shall include reimbursement of amounts and expenses incurred and paid in settling any such claim, action, suit or proceeding. In the case of a criminal action, suit or proceeding, a conviction or judgment (whether based on a plea of guilty or nolo contendere or its equivalent, or after trial) shall not be deemed an adjudication that such director or officer is guilty of fraud in the performance of his duties, if such director or officer was acting in good faith in what he considered to be the best interests of the corporation and with no reasonable cause to believe that the action was illegal. The corporation, by its Board of Directors, may indemnify in like manner, or with any limitations, any employee or former employee of the corporation with respect to any action taken or not taken in his capacity as such employee. The foregoing rights of indemnification shall be in addition to all rights to which officers, directors or employees may be entitled as a matter of law. 7.03. Transactions With the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, providing that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly and severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if 1) the fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or 2) the fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or 3) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. 7.04. Reimbursement of Disallowed Expense. In the event any payment (either as compensation, interest, rent, expense reimbursement or otherwise) to any officer, director or shareholder which is claimed as a deduction by this corporation for federal income tax purposes shall subsequently be determined not to be deductible in whole or in part by this corporation, such officer, director, or shareholder as the case may be, shall reimburse the corporation for the amount of such payment so disallowed provided that this provision shall not apply to any expense where the Board of Directors, in its sole discretion, determines such disallowance (including any concession of such issue by the corporation in connection with the settlement of other issues in a disputed case) is manifestly unfair and contrary to the facts. For purposes of this provision, any such payment shall be determined not to be deductible when and only when either (a) the same may have been determined by a court of competent jurisdiction and either the corporation shall not have appealed from such determination or the time for perfecting an appeal shall have expired or (b) such disallowed deduction shall constitute or be contained in a settlement with the Internal Revenue Service which settlement may have been authorized by the Board of Directors. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation, the year when incorporated, and the words "Nevada" and "Corporate Seal." 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.17 16 manx3-17.txt ARTICLES OF FEMCO MACHINE COMPANY Exhibit 3.17 ARTICLES OF INCORPORATION OF FEMCO MACHINE COMPANY, INC. The undersigned, being a person and acting as incorporator of a corporation under the General Corporation Law of Nevada, Chapter 78 of the Nevada Revised Statutes, hereby adopts the following as the Articles of Incorporation of such corporation: -------------------------- ARTICLE I The name of the Corporation shall be Femco Machine Company, Inc. ARTICLE II The initial registered office of the Corporation is located at One East First Street, Reno, (Washoe County) Nevada 89501, and the name of its initial registered agent at such address is The Corporation Trust Company of Nevada. ARTICLE III The aggregate number of shares of stock that the Corporation shall have authority to issue shall be 10,000 shares of stock, designated as "Common Stock," with a par value of One Dollar ($1.00) per share. ARTICLE IV The governing body of the Corporation will consist of directors, the number of which may be fixed from time to time by the Bylaws of the Corporation. The number of the initial directors shall be three (3). The initial directors shall hold office until their successors shall have been elected and qualified or until their death, resignation or removal from office in the manner provided by law or the Bylaws of the Corporation. The names and addresses of the initial directors are as follows: Name Address Fred M. Butler 700 E. Magnolia Ave. Suite B P. O. Box 66 Manitowoc, WI 54221 Robert R. Friedl 700 E. Magnolia Ave. Suite B P. O. Box 66 Manitowoc, WI 54221 E. Dean Flynn 700 E. Magnolia Ave. Suite B P. O. Box 66 Manitowoc, WI 54221 ARTICLE V The name and address of the Corporation's incorporator are: Patricia E. Manion, Davis & Kuelthau, S.C., 111 East Kilbourn, Suite 1400, Milwaukee, WI 53202-6613. EX-3.18 17 manx3-18.txt BYLAWS OF FEMCO MACHINE COMPANY Exhibit 3.18 BYLAWS OF FEMCO MACHINE COMPANY (Adopted as of January 6, 1994) ARTICLE I OFFICES ss. 1.01 Business Office. The Corporation's principal office shall be within the State of Nevada and shall be located in Washoe County. The Corporation may have such other offices, either within or without the State of Nevada, as the Board of Directors may designate or as the Corporation's business may require from time to time. The Corporation shall maintain at its principal office a copy of certain records, as specified in ss. 2.12 of Article II. ss. 1.02 Registered Office. The Corporation's registered office required by the Nevada General Corporation Law (the "Act") to be maintained in the State of Nevada shall be the place designated by resolution of the Corporation's Board of Directors and may be, but need not be, identical to the principal office in the State of Nevada. The address of the registered office may be changed from time to time. ARTICLE II SHAREHOLDERS ss. 2.01 Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on the First Tuesday of November in each year at the hour of 10:00 A.M., or at such other time and date within thirty (30) days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purposes of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Nevada, such meeting shall be held at the same time on the next succeeding business day. If the election of directors shall not be held on the day designated herein for the annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as conveniently may be held. ss. 2.02 Special Shareholder Meetings. Special meetings of the shareholders, for any purpose or purposes, may be called by (1) the President, (2) the Board of Directors or such officers as the Board of Directors may authorize from time to time, or (3) the President or Secretary upon the written request of the holders of record of at least one-tenth of all the outstanding shares of the Corporation entitled to vote on any issue at the meeting. The party calling the special meeting shall designate the date and hour of the meeting. Upon delivery to the President or Secretary of a written request pursuant to item (3) above, stating the purpose(s) of the requested meeting, dated and signed by the person(s) entitled to request such a meeting, it shall be the duty of the officer to whom the request is delivered to give, within thirty (30) days of such delivery, notice of the meeting to the shareholders. Notice of any special meeting shall be given in the manner provided in ss. 2.04 of these Bylaws. Only business within the purpose(s) described in the special meeting notice shall be conducted at a special shareholders meeting. ss. 2.03 Place of Shareholder Meeting. The Board of Directors may designate any place, either within or without the State of Nevada, as the place of meeting for any annual or for any special meeting called by the Board of Directors. A waiver of notice signed by all persons entitled to vote at a meeting also may designate any place, either within or without the State of Nevada, as the place for the holding of such meeting. If no designation is made by the Board of Directors, or if a special meeting be otherwise called, the place of the meeting shall be the Corporation's principal business office in the State of Nevada, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. ss. 2.04 Notice of Shareholder Meeting. (a) Required Notice. Unless otherwise required by the Act, written notice stating the place, day and hour of any annual or special shareholder meeting shall be delivered not less than ten (10) nor more than sixty (60) days before the meeting date, either personally or by mail, by or at the direction of the President, the Board of Directors, or other persons calling the meeting, to each shareholder of record entitled to vote at such meeting and to any other shareholder entitled by the Act or the Articles of Incorporation to receive notice of the meeting. Notice shall be deemed to be effective at the earlier of: (1) when deposited in the United States mail, addressed to the shareholder at his or her address as it appears on the Corporation's stock transfer books, with postage thereon prepaid; (2) on the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; (3) when received; or (4) 5 days after deposit in the United States mail, if mailed postpaid and correctly addressed to an address other than that shown in the Corporation's current record of shareholders. (b) Adjourned Meeting. If any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. But if a new record date for the adjourned meeting is or must be fixed (see ss. 2.05 of this Article II), then notice must be given pursuant to the requirements of paragraph (a) of this ss. 2.04, to those persons who are shareholders as of the new record date. (c) Waiver of Notice. A shareholder may waive notice of meeting (or any notice required by the Act, Articles of Incorporation, or Bylaws), by a writing signed by the shareholder entitled to the notice, which is delivered to the Corporation (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called. Except as provided in this ss. 2.04(d), or as provided in the Corporation's Articles of Incorporation, or otherwise in the Act, the notice of an annual shareholder meeting need not include a description of the purpose or purposes for which the meeting is called. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the Articles of Incorporation (including any restated articles requiring shareholder approval); (2) a plan of merger or share exchange; (3) the sale, lease, exchange or other disposition of all, or substantially all, of the Corporation's property; (4) the dissolution of the Corporation; or (5) the removal of a director, the notice must so state and be accompanied by, respectively, a copy or summary of the: (1) articles of amendment; (2) plan of merger or share exchange; or (3) transaction for disposition of the Corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders are, or may be entitled to assert dissenters' rights, and must be accompanied by a copy of ss.ss. 78.481-78.502 of the Act. If the Corporation issues, or authorizes the issuance of shares for promissory notes or for promises to render services in the future, the Corporation shall, with or before the notice of the next shareholder meeting, report in writing to all the shareholders the number of shares authorized or issued, and the consideration received. Likewise, if the Corporation indemnifies or advances expenses to a director, this shall be reported to all the shareholders with or before notice of the next shareholder's meeting. ss. 2.05 Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or any adjournment thereof, or shareholders entitled to receive payment of any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be not more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no such record date is fixed, the record date for determination of such shareholders shall be at the close of business on: (a) With respect to an annual shareholder meeting or any special shareholder meeting called by the Board of Directors or any person specifically authorized by the Board or these Bylaws to call a meeting, the day before the first notice is delivered to shareholders; (b) With respect to a special shareholder's meeting demanded by the shareholders, the date the first shareholder signs the demand; (c) With respect to the payment of a share dividend, the date the Board authorizes the share dividend; (d) With respect to actions taken in writing without a meeting (pursuant to Article II,ss. 2.11), the date the first shareholder signs a consent; (e) With respect to a distribution to shareholders, (other than one involving a repurchase or acquisition of shares), the date the Board authorizes the distribution; and (f) With respect to any other matter for which such a determination is required, as provided by law. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the Board of Directors fixes a new record date which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. ss. 2.06 Voting Lists. The officer or agent having charge of the stock transfer books for shares of the Corporation shall make, before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. The list must be arranged by voting group, if such exists, and within each voting group by class or series of shares. The shareholder list shall be subject to inspection at the Corporation's principal office by any shareholder at any time during usual business hours for any proper purpose, beginning two (2) business days after notice is given of the meeting for which the list was prepared. Such list also shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the meeting for purposes related to the meeting. A shareholder, or his or her agent or attorney, is entitled on written demand to inspect and, subject to the requirements of the Act and of ss. 2.12(c), to copy the list during regular business hours and at the shareholder's expense, during the period it is available for inspection. The Corporation shall maintain the shareholder list in written form or in another form capable of conversion into written form within a reasonable time. ss. 2.07 Shareholder Quorum and Voting Requirements. If the Articles of Incorporation or the Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by the voting group. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Unless the Articles of Incorporation or the Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. If the Articles of Incorporation or the Act provides for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation or the Act require a greater number of affirmative votes. ss. 2.08 Proxies. Except as otherwise provided by the Act, at all meetings of shareholders, a shareholder may vote in person, or vote by proxy which is executed in writing by the shareholder or which is executed by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the Corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. Unless otherwise provided in the appointment form, a proxy appointment may be revoked at any time before it is voted, either by written notice filed with the Secretary or other officer or agent of the Corporation authorized to tabulate votes, or by oral notice given by the shareholder during the meeting. The presence of a shareholder who has filed his or her proxy appointment shall not of itself constitute a revocation. ss. 2.09 Voting of Shares. Unless otherwise provided in the Articles of Incorporation or the Act, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Except as provided by specific court order, no shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation are held by the Corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. Provided, however, the preceding sentence shall not limit the Corporation's power to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. ss. 2.10 Corporation's Acceptance of Votes. (a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder. (b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of its shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder if: (1) the shareholder is an entity as defined in the Act and the name signed purports to be that of an officer or agent of the entity; (2) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; (3) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, and proxy appointment; (4) the name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to the vote, consent, waiver, or proxy appointment; (5) two or more persons are the shareholder as covenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all the co-owners. (c) The Corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the shareholder. (d) The Corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the shareholder for the consequences of the acceptance or rejection. (e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise. ss. 2.11 Informal Action By Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the Corporation for inclusion in the minute book. Action may not, however, be taken under this section with respect to an election of directors for which shareholders may vote cumulatively. If the act to be taken requires that notice be given to non-voting shareholders, the Corporation shall give the non-voting shareholders written notice of the proposed action at least 10 days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document. ss. 2.12 Shareholder's Rights to Inspect Corporate Records. (a) Minutes and Accounting Records. The Corporation shall keep as permanent records minutes of all meetings of its shareholders and Board of Directors, a record of all actions taken by the shareholders or Board of Directors without a meeting, and a record of all actions taken by any committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation. The Corporation shall maintain appropriate accounting records. (b) Absolute Inspection Rights of Records Required at Principal Office. If a shareholder gives the Corporation written notice of his or her demand at least five (5) business days before the date on which he or she wishes to inspect and copy, the shareholder (or his or her agent or attorney) has the right to inspect, during regular business hours, any of the following records, all of which the Corporation is required to keep at its principal office: (1) its Articles or Restated Articles of Incorporation and all amendments to them currently in effect; (2) its Bylaws or Restated Bylaws and all amendments to them currently in effect; (3) resolutions adopted by its Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding; (4) the minutes of all shareholders' meetings, and records of all action taken by shareholders without a meeting, for the past three (3) years; (5) all written communications to shareholders generally within the past three (3) years, including the financial statement furnished for the past three (3) years to the shareholders; (6) a list of the names and business addresses of its current directors and officers; and (7) its most recent annual report delivered to the Secretary of State. (c) Conditional Right to Inspect and Copy. In addition, if a shareholder who has been a shareholder of the Corporation for at least six (6) months or who owns at least five percent (5.0%) of the outstanding stock of the Corporation gives the Corporation a written demand made in good faith and for a proper purpose at least five (5) business days before the date on which the shareholder wishes to inspect and copy, the shareholder describes with reasonable particularity his or her purpose and the records the shareholder desires to inspect, and the records are directly connected with the shareholder's purpose, a shareholder (or his or her agent or attorney) is entitled to inspect and copy, during regular business hours at a reasonable location specified by the Corporation, any of the following records of the Corporation: (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors on behalf of the Corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or Board of Directors without a meeting; (2) the Corporation's accounting records; and (3) the record of shareholders (compiled no earlier than the date of the shareholder's demand). (d) Copy Costs. The right to copy records includes, if reasonable, the right to receive copies made by photographic, xerographic, or other means. The Corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge may not exceed the estimated cost of production or reproduction of the records. (e) Shareholder Includes Beneficial Owner. For purposes of thisss. 2.12, the term "shareholder" shall include a beneficial owner whose shares are held in a voting trust or by a nominee in his or her behalf. ss. 2.13 Preparation and Delivery of Financial Statements. (a) Within one hundred twenty (120) days after the close of each fiscal year, the Corporation shall prepare annual financial statements, which may be consolidated or combined statements of the Corporation and one or more of its subsidiaries, as appropriate, that include a balance sheet as of the end of the fiscal year, an income statement for that year, and a statement of changes in shareholders' equity for the year unless that information appears elsewhere in the financial statements. If financial statements are prepared for the Corporation on the basis of generally accepted accounting principles, the annual financial statements also must be prepared on that basis. (b) On written request from any shareholder, the Corporation shall mail such shareholder the latest financial statements. If the annual financial statements are reported upon by a public accountant, such report must accompany them. If not, the statements must be accompanied by a statement of the President or the person responsible for the Corporation's accounting records: (1) stating his or her reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and (2) describing any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year. ss. 2.14 Dissenters' Rights. Each shareholder shall have the right to dissent from action by the Corporation and obtain payment for his or her shares when so authorized by the Act, the Articles of Incorporation, these Bylaws, or by resolution of the Board of Directors. ss. 2.15 Conduct of Meetings. The President, or in his or her absence the Vice-President, and in his or her absence, any person chosen by the shareholders present, shall call the meeting of the shareholders to order and shall act as Chairman of the meeting, and the Secretary of the Corporation shall act as Secretary of all meetings of the shareholders, except that the presiding officer may appoint any Assistant Secretary or other person to act as Secretary of the meeting. ARTICLE III BOARD OF DIRECTORS ss. 3.01 General Powers. All corporate powers shall be exercised by or under the authority of, and the Corporation's business and affairs shall be managed under the direction of, the Board of Directors. ss. 3.02 Election. Unless otherwise provided in the Articles of Incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. ss. 3.03 Number, Tenure and Qualification. The number of directors shall be fixed by a resolution adopted by a majority of the directors then in office, or by amendment of these Bylaws, but in no event shall there be less than three (3) directors, and a decrease in the number of directors shall not shorten the term of office of an incumbent director. Each director shall be elected at the Corporation's annual meeting of the shareholders and shall hold office until the next annual meeting of shareholders and until his or her successor shall have been elected and qualified or until his or her death, resignation or removal from office in the manner provided by law or the Bylaws of the Corporation. Directors need not be residents of the State of Nevada or shareholders of the Corporation. ss. 3.04 Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of shareholders, and each adjourned session thereof. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Nevada, for the holding of additional regular meetings without other notice than such resolution. Any such regular meeting may be held by any means of communication as permitted by ss. 3.09. ss. 3.05 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President, Vice President or any one (1) director. The person or persons authorized to call special meetings of the Board of Directors may fix any time and any place, either within or without the State of Nevada, as the time and place for holding any special meeting of the Board of Directors called by them. If no place is fixed by the person calling the meeting, the place of meeting shall be the Corporation's principal office in the State of Nevada. Any such special meeting may be held by any means of communication as permitted by ss. 3.09. ss. 3.06 Notice of Special Meetings; Waiver of Notice. Notice stating the time and place of any special meeting of the Board of Directors shall be given at least seventy-two (72) hours previously thereto by written notice delivered personally or mailed to each director at his or her business address, or such other address as designated in writing to the Secretary, or by telephone or telegram. If mailed, such notice shall be deemed to be effective with the earlier of: (1) when received, or (2) five days after deposit in the United States Mail, addressed to the director's business office, with postage thereon prepaid; or (3) the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the director. If notice be given by telephone or telegram, such notice shall be deemed to be delivered when the notice is given personally by telephone or when the telegram is delivered to the telegraph company. Whenever any notice is required to be given to any director of the Corporation under the provisions of these Bylaws or under the provisions of the Articles of Incorporation or under the provisions of any statute, a waiver thereof in writing, signed at any time, whether before or after the time of the meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of the business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. ss. 3.07 Director Quorum. Except as otherwise specified by law or the Articles of Incorporation or these Bylaws, a majority of the number of directors fixed in the manner provided by ss. 3.03 of this Article III shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but though less than such quorum is present at a meeting, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the act of a greater number is required by the Act, the Articles of Incorporation or these Bylaws. A majority of the number of directors appointed to serve on a committee as authorized in ss. 3.16 of these Bylaws shall constitute a quorum for the transaction of business at any committee meeting. These provisions shall not, however, apply to the determination of a quorum for actions taken under emergency Bylaws or any other provisions of these Bylaws that fix different quorum requirements. ss. 3.08 Voting Requirement. The affirmative vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors or a committee of the Board of Directors. This provision shall not, however, apply to any action taken by the Board of Directors pursuant to ss. 3.15 or Article IX of these Bylaws, or in the event the affirmative vote of a greater number of directors is required by the Act, the Articles of Incorporation, or any other provision of these Bylaws. ss. 3.09 Meetings by Electronic Means of Communication. To the extent provided in these Bylaws, the Board of Directors, or any committee of the Board, may, in addition to conducting meetings in which each director participates in person, and notwithstanding any place set forth in the notice of the meeting or these Bylaws, conduct any regular or special meeting by the use of any electronic means of communication, provided (1) all participating directors may simultaneously hear each other during the meeting, or (2) all communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors. Before the commencement of any business at a meeting at which any directors do not participate in person, all participating directors shall be informed that a meeting is taking place at which official business may be transacted. ss. 3.10 Director's Assent. A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon the director's arrival) to holding it or transacting business at the meeting; or (2) the director dissents or abstains from the action taken and minutes of the meeting are prepared that show the director's dissent or abstention from the action; (3) the director dissents or abstains from an action taken, minutes of the meeting are prepared that fail to show the director's dissent or abstention from the action taken and the director delivers to the Corporation a written notice of that failure that complies with ss. 78.315 of the Act promptly after receiving the minutes; or (4) the director delivers written notice of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. ss. 3.11 Conduct of Meetings. The President, and in his absence the Vice-Presidents in the order appointed under ss. 4.07 of Article IV, and in their absence, any director chosen by the directors then present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the secretary, the presiding officer may appoint any Assistant secretary or any director or other person present to act as secretary of the meeting. ss. 3.12 Removal. Any director or the entire Board of Directors may be removed from office with or without cause by the affirmative vote of a majority of the shares outstanding and entitled to vote for the election of such director(s) taken at a special meeting of shareholders called for that purpose, and any vacancy so created may be filled by the shareholders. ss. 3.13 Vacancies. Any vacancy occurring on the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled by the shareholders. During such time as the shareholders fail or are unable to fill such vacancies then, and until the shareholders act, the vacancy may be filled (1) by the board of directors, or (2) if the directors remaining in office constitute fewer than a quorum of the Board, by the affirmative vote of a majority of all directors remaining in office. ss. 3.14 Compensation and Expenses. The Board of Directors, irrespective of any personal interest of any of its members, may (1) establish reasonable compensation of all directors for services to the Corporation as directors or may delegate this authority to an appropriate committee, (2) provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments to directors and to their estates, families, dependents, or beneficiaries for prior services rendered to the Corporation by the directors, and (3) provide for reimbursement of reasonable expenses incurred in the performance of the directors' duties, including the expense of traveling to and from Board meetings. ss. 3.15 Informal Action By Directors. Any action required or permitted by the Articles of Incorporation or Bylaws or any provision of law to be taken by the Board of Directors at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken shall be signed by all of the directors then in office, and filed with the Corporation's records. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting and may be described as such in any document. ss. 3.16 Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors may designate one or more committees, each committee to consist of COMMITTEE or more directors elected by the Board of Directors, which to the extent provided in said resolution, as initially adopted, and as thereafter supplemented or amended by further resolution adopted by a like vote, shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the Corporation's business and affairs, except action in respect to the (1) authorization of distributions, (2) the approval or proposal to shareholders of action for which the Act requires approval by shareholders, (3) filling vacancies on the Board of Directors or its committees, (4) amending the Articles of Incorporation pursuant to Board authority, (5) adopting, amending or repealing Bylaws, (6) approving a plan of merger not requiring shareholder approval, (7) the authorization or approval to reorganize shares, except according to a formula or method prescribed by the Board of Directors, (8) the authorization or approval of the issuance or sale or contract for sale of shares, or (9) the determination of the designation and relative rights, preferences and limitations of a class or series of shares. ss. 3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 3.10, 3.11 and 3.15 of this Article III, which govern meetings, actions without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors, apply to committees and their members. ARTICLE IV OFFICERS ss. 4.01 Number. The Corporation's principal officers shall be a President, a Vice President, a Secretary, and a Treasurer, each of whom shall be appointed by the Board of Directors. Additional officers and assistant officers, including any Vice Presidents, may be appointed by the Board of Directors as the Board deems appropriate. If there is more than one Vice President, the Board may establish designations for the Vice Presidencies to identify their functions or their order. There may, in addition, be a chairperson or co-chairperson of the board, whenever the Board shall see fit to cause such office or offices to be filled. Any two or more offices may be held simultaneously by the same person. ss. 4.02 Appointment and Term of Office. The Corporation's officers shall be appointed for a term as determined by the Board of Directors. If no term is specified, they shall hold office until their successor shall have been duly appointed and shall have qualified or until the officer's death, resignation or removal from office in the manner hereinafter provided. The designation of a specified term does not grant to the officer any contract rights, and the Board can remove the officer at any time prior to the termination of such term. ss. 4.03 Removal. Any officer or agent appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the Corporation's best interests will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of itself create contract rights. ss. 4.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or other reason shall be filled in the manner prescribed for regular appointments to the office. ss. 4.05 Powers, Authority and Duties. The Corporation's officers shall have the powers and authority conferred in the duties prescribed by the Board of Directors or the officer who appointed them in addition to and to the extent not inconsistent with those specified in other sections of this Article IV. ss. 4.06 The President. The President shall be the Corporation's principal executive officer and, subject to the control of the Board of Directors, shall in general supervise and control all of the Corporation's business and affairs. The President shall, when present, preside at all meetings of the shareholders and of the Board of Directors. The President may sign, with the Secretary or any other proper officer of the Corporation authorized by the Board of Directors, certificates for shares of the Corporation and deeds, mortgages, bonds, contracts, or other instruments in the ordinary course of business or that the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by the Bylaws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incidental to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. ss. 4.07 The Vice President. In the absence of the President or in the event of the President's death or inability or refusal to act as directed by the Board of Directors, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated at the time of their appointment, or in the absence of any designation, then in order of their appointment) shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or an Assistant Secretary certificates for shares of the Corporation; and shall perform such other duties as from time to time may be assigned by the President or by the Board of Directors. ss. 4.08 The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and see that books, reports, statements, certificates and all other documents and records required by law are properly kept and filed; (d) keep a register of the post office address of each shareholder, which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the Corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the Corporation; and (g) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. ss. 4.09 The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all of the Corporation's funds and securities; (b) receive and give receipts for money due and payable to the Corporation from any source whatsoever, and deposit all funds of the Corporation in such banks, trust companies, or other depositories as shall be selected in accordance with the provisions of Article V of these Bylaws, and (C) in general perform all of the duties incidental to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. ss. 4.10 Assistant Secretaries and Assistant Treasurers. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice President certificates for shares of the Corporation and issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers if required by the Board of Directors, shall give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. ss. 4.11 Salaries. Officers' salaries shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. ARTICLE V CONTRACTS, LOANS, CHECKS AND DEPOSITS ss. 5.01 Contracts. The Board of Directors may authorize any individual officer or agent or number of officers or agents to enter into any contract or to execute and deliver any instrument in the Corporation's name and on its behalf, and such authorization may be general or confined to specific instances. ss. 5.02 Loans. No loans shall be contracted on the Corporation's behalf and no indebtedness shall be incurred in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. ss. 5.03 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the Corporation's name, shall be signed by such officer or officers, agents or agents of the Corporation and in such manner as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. ss. 5.04 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the Corporation's credit in such banks, trust companies or other depositories as may be selected by or under the authority of the Board of Directors. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER ss. 6.01 Certificates for Shares. (a) Content Certificates representing shares of the Corporation shall at a minimum state on their face the name of the issuing corporation and that it is formed under the laws of Nevada; the name of the person to whom issued; and the number and class of shares and the designation of the series, if any, the certificate represents; and be in such form as determined by the Board of Directors. Such certificates shall be signed (either manually or by facsimile) by the President or a Vice President and by the Secretary or an Assistant Secretary. Each certificate for shares shall be consecutively numbered or otherwise identified. (b) Legend as to Class or Series If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) must be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the Corporation will furnish the shareholders this information on request in writing and without charge. (c) Shareholder List The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the Corporation. (d) Transferred Shares All certificates surrendered to the Corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefor upon such terms and indemnification of the Corporation as the Board of Directors may prescribe. ss. 6.02 Registration of the Transfer of Shares. Registration of the transfer of shares of the Corporation shall be made only on the Corporation's stock transfer books by the holder of record thereof or by his or her legal representative, who shall furnish proper evidence of authority to transfer, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and on surrender for cancellation of the certificate for such shares. The person in whose name shares stand on the Corporation's books shall be deemed by the Corporation to be the owner thereof for all purposes. ss. 6.03 Restrictions on Transfer. The Board of Directors or shareholders may impose restrictions on the transfer of shares. A restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the Corporation upon the transfer of such shares. ss. 6.04 Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate of shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the Corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors, including the furnishing of an indemnity bond if so required. ss. 6.05 Consideration for Shares. The Corporation's shares may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, promissory notes, in other property, tangible or intangible, or in labor or services actually performed or to be performed for the Corporation. When payment of the consideration for which shares are to be issued shall have been received by the Corporation, such shares shall be deemed to be fully paid and nonassessable by the Corporation. No certificate shall be issued for any share until such share is fully paid. If the consideration to be paid for share consists, in whole or part, of a promissory note or a contract for services to be performed for the Corporation, the Board of Directors may, in its discretion, elect to hold those shares in escrow or otherwise restrict their transfer. In the event that shares are so escrowed, and the shareholder defaults under his or her obligations under the promissory note or the contract for services, as applicable, the Corporation may, in addition to any other legal or equitable remedies, cancel all or part of the escrowed shares. ss. 6.06 Acquisition of Shares. The Corporation may acquire its own shares and unless otherwise provided in the Articles of Incorporation, the shares so acquired constitute authorized but unissued shares. ss. 6.07 Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Nevada as they may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation. ARTICLE VII FISCAL YEAR The Board of Directors shall by resolution, establish the Corporation's fiscal year. ARTICLE VIII DISTRIBUTIONS The Board of Directors may from time to time authorize, and the Corporation may make distributions (including dividends on its outstanding shares) in the manner and upon the terms and conditions provided by law, the Articles of Incorporation and the resolutions of the Board of Directors. ARTICLE IX INDEMNIFICATION ss. 9.01 Mandatory Indemnification. The Corporation shall indemnify a director or officer as follows: (a) To the extent he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding, if the director or officer was a party because he or she is or was at the time of the events upon which the proceeding was based a director or officer of the Corporation. A director or officer shall exercise his or her right to indemnification under this ss. 9.01 of Article IX by delivering a written demand for indemnification to the Corporation's Treasurer, or the President if the party seeking indemnification is the Treasurer. (b) In all cases not included in ss. 9.01(a) of this Article IX, the Corporation shall indemnify a director or officer against liability incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is or was at the time of the events upon which the proceeding was based a director or officer of the Corporation, unless liability was incurred because the director or officer breached or failed to perform a duty he or she owes to the Corporation and the breach or the failure to perform constitutes: (i) A willful failure to deal fairly with the Corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) A violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (iii) A transaction from which the director or officer derived an improper personal benefit; or (iv) Willful misconduct. (c) Whether a director or officer of the Corporation shall be entitled to indemnification under ss. 9.01(b) shall be determined in accordance with the procedures established in ss. 9.02 of this Article IX. (d) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director or officer is not required under this subsection. ss. 9.02 Determination of Right to Indemnification. A director or officer seeking indemnification under ss. 9.01(b) of this Article IX shall first make a written request to the Corporation's Treasurer, or the Corporation's President, if the person seeking indemnification is the Treasurer, for such indemnification. Determination of whether indemnification is required shall be made by one of the following means: (a) By a majority vote of a quorum of the Board of Directors consisting of directors who are not at the time parties to the same or related proceedings. If such quorum of disinterested directors cannot be obtained, by a majority vote of a committee duly appointed by the Board of Directors and consisting solely of two (2) or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee. (b) By independent legal counsel selected by a majority vote of a quorum of the Board of Directors or its committee consisting of directors who are not at the time parties to the same or related proceedings or, if such a quorum cannot be obtained, by a majority vote of the full Board of Directors, including directors who are parties to the same or related proceedings. (c) By the affirmative majority vote, or unanimous written consent, of the Corporation's shareholders. However, shares owned by or voted under the control of persons who at the time of the vote or consent are parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination. (d) By a panel of three (3) arbitrators consisting of one (1) arbitrator selected by those directors entitled under subsection (b) above to select independent legal counsel, one (1) arbitrator selected by the director or officer seeking indemnification and one (1) arbitrator selected by the other two (2) arbitrators. (e) By a court of competent jurisdiction upon application by the director or officer for an initial determination of entitlement to indemnification or for review by the court of an adverse determination. Indemnification shall be ordered if the court determines that the director or officer is entitled to indemnification under ss. 9.01 of this Article IX or that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. If the director of officer is successful in obtaining indemnification by order of the court, in addition to indemnification against all other expenses and liability, the director or officer shall be reimbursed for expenses reasonably incurred in pursuing his or her request for indemnification. The director or officer of the Corporation seeking indemnification shall designate in his or her request for indemnification the method of making the indemnification determination. ss. 9.03 Advance of Expenses as Incurred. The Corporation shall, upon written request by the director or officer, pay for or reimburse the reasonable expenses incurred by a director or officer who is a party to a proceeding, as those expenses are incurred, if the director or officer furnishes the Corporation a written affirmation of his or her good faith belief that he or she has not breached his or her duties to the Corporation, and the director or officer furnishes the Corporation with a written undertaking, executed personally or on his or her behalf, to repay the allowance to the extent that it is ultimately determined that the indemnification is not required. The Corporation may accept the undertaking without reference to his or her ability to repay the allowance, and the undertaking may be secured or unsecured. ss. 9.04 Insurance. The Corporation may purchase and maintain insurance on behalf of its directors and officers, or to reimburse itself, against liability asserted or incurred and expenses incurred by the director or officer or corporation in connection with a proceeding brought against the director or officer in his capacity as a director or officer or arising from his status as a director or officer, regardless of whether the Corporation is required or authorized to indemnify the individual against the same liability pursuant to the provisions hereof. ss. 9.05 Definitions. The following terms used in this Article IX shall have the indicated meanings: (a) "Director" or "officer" means an individual who (i) is or was a director or officer of the Corporation; (ii) an individual who, while a director or officer of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, member of any governing or decision-making committee, employee or agent of another corporation, partnership, joint venture or other enterprise; or (iii) while a director or officer of the Corporation, is or was serving an employee benefit plan because his or her duties to the Corporation also impose duties on, or otherwise involve services by, the person to the plan or to the participants in or beneficiaries of the plan. "Director" or "officer" includes the estate or personal representatives of a director or officer. (b) "Expenses" include all fees, costs, charges, attorneys' counsel fees and other expenses and disbursements incurred in connection with a proceeding. (c) "Liability" includes the obligation to pay a judgment, settlement, penalty, fine, assessment or forfeiture, including an excise tax assessed with respect to or on an employee benefit plan, and reasonable expenses. (d) "Party" includes an individual who was or is, or who is threatened to be made, or is at risk of becoming, a named defendant or respondent in a proceeding. (e) "Proceeding" means any threatened, pending or completed action, suit, claim, litigation, appeal, arbitration or other proceeding, whether civil, criminal, administrative or investigative, formal or informal, predicated on foreign, federal, state or local law, brought by or in the right of the Corporation or by any other person or by any governmental or administrative body. ss. 9.06 Savings Clause. To the extent any court of competent jurisdiction shall determine that the indemnification provided under this Article IX shall be invalid as applied to a particular claim, issue or matter, the provisions hereof shall be deemed amended to allow and require indemnification to the maximum extent permitted by law. ss. 9.07 Effective Date. This Article IX shall be deemed to be a contract between the Corporation and each previous, current or future director or officer. The provisions of this Article IX shall apply to all proceedings commenced after the date hereof, whether rising from any action taken or failure to act before or after such adoption. No amendment, modification or repeal of this Article IX shall diminish the rights provided hereby or diminish the right to indemnification with respect to any claim, issue or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act prior to such amendment, modification or repeal. ARTICLE X CORPORATE SEAL The Corporation shall have no seal. ARTICLE XI AMENDMENTS ss. 11.01 Board of Directors. The Board of Directors, from time to time, by vote of a majority of the directors then in office, may adopt, amend or repeal any and all of the Corporation's Bylaws, unless the Articles of Incorporation or the Act reserve this power exclusively to the shareholders in whole or in part; or the shareholders, in adopting, amending or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw. ss. 11.02 Shareholders. The shareholders, from time to time, by vote of a majority of the shares entitled to vote, may adopt, amend or repeal any and all of the Corporation's Bylaws. ss. 11.03 Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the Bylaws then in effect but which is taken or authorized by the unanimous written consent of the shareholders or Board of Directors or by the affirmative vote of not less than the number of shares or the number of directors required to amend the Bylaws so that the Bylaws would be consistent with such action, shall be given the same effect as through the Bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized. EX-3.19 18 manx3-19.txt ARTICLES OF WEST-MANITOWOC, INC. Exhibit 3.19 ARTICLES OF INCORPORATION OF WEST - MANITOWOC, INC. The undersigned, acting as Incorporator of a corporation under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes, hereby adopts the following as the Articles of Incorporation of such corporation: ----------------------------------- ARTICLE I The name of the corporation shall be West - Manitowoc, Inc. ARTICLE II The aggregate number of shares of stock that the Corporation shall have authority to issue shall be 25,000 shares of stock, designated as "Common Stock," with a par value of One Cent ($0.01) per share. ARTICLE III The number of the initial directors shall be such number as is fixed from time to time by and in the manner provided for in the Bylaws. ARTICLE IV The initial registered office of the Corporation is located at 44 E. Mifflin Street, Madison, WI 53703, and the name of its initial registered agent at such address is CT Corporation System. ARTICLE V The name and address of the Corporation's Incorporator are: Davis & Kuelthau, S.C., 111 E. Kilbourn Avenue, Suite 1400, Milwaukee, WI 53202-6613. EX-3.20 19 manx3-20.txt BYLAWS OF WEST-MANITOWOC, INC. Exhibit 3.20 BYLAWS OF WEST - MANITOWOC, INC. (Adopted as of August 27, 1993) ARTICLE I OFFICES Section 1.01 Business Office. The Corporation's principal office shall be within the State of Wisconsin and shall be located in Manitowoc County. The Corporation may have such other offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the Corporation's business may require from time to time. The Corporation shall maintain at its principal office a copy of certain records, as specified in Section 2.12 of Article II. Section 1.02 Registered Office. The Corporation's registered office required by the Wisconsin Business Corporation Law (the "Act") to be maintained in the State of Wisconsin shall be the place designated by resolution of the Corporation's Board of Directors and may be, but need not be, identical to the principal office in the State of Wisconsin. The address of the registered office may be changed from time to time. ARTICLE II SHAREHOLDERS Section 2.01 Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on the First Tuesday of November in each year at the hour of 10:00 A.M., or at such other time and date within thirty (30) days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purposes of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Wisconsin, such meeting shall be held at the same time on the next succeeding business day. If the election of directors shall not be held on the day designated herein for the annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as conveniently may be held. Section 2.02 Special Shareholder Meetings. Special meetings of the shareholders, for any purpose or purposes, may be called by (1) the President, (2) the Board of Directors or such officers as the Board of Directors may authorize from time to time, or (3) the President or Secretary upon the written request of the holders of record of at least one-tenth of all the outstanding shares of the Corporation entitled to vote on any issue at the meeting. The party calling the special meeting shall designate the date and hour of the meeting. Upon delivery to the President or Secretary of a written request pursuant to item (3) above, stating the purpose(s) of the requested meeting, dated and signed by the person(s) entitled to request such a meeting, it shall be the duty of the officer to whom the request is delivered to give, within thirty (30) days of such delivery, notice of the meeting to the shareholders. Notice of any special meeting shall be given in the manner provided in Section 2.04 of these Bylaws. Only business within the purpose(s) described in the special meeting notice shall be conducted at a special shareholders meeting. Section 2.03 Place of Shareholder Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual or for any special meeting called by the Board of Directors. A waiver of notice signed by all persons entitled to vote at a meeting also may designate any place, either within or without the State of Wisconsin, as the place for the holding of such meeting. If no designation is made by the Board of Directors, or if a special meeting be otherwise called, the place of the meeting shall be the Corporation's principal business office in the State of Wisconsin, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. Section 2.04 Notice of Shareholder Meeting. (a) Required Notice. Unless otherwise required by the Act, written notice stating the place, day and hour of any annual or special shareholder meeting shall be delivered not less than ten (10) nor more than sixty (60) days before the meeting date, either personally or by mail, by or at the direction of the President, the Board of Directors, or other persons calling the meeting, to each shareholder of record entitled to vote at such meeting and to any other shareholder entitled by the Act or the Articles of Incorporation to receive notice of the meeting. Notice shall be deemed to be effective at the earlier of: (1) when deposited in the United States mail, addressed to the shareholder at his or her address as it appears on the Corporation's stock transfer books, with postage thereon prepaid; (2) on the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; (3) when received; or (4) 5 days after deposit in the United States mail, if mailed postpaid and correctly addressed to an address other than that shown in the Corporation's current record of shareholders. (b) Adjourned Meeting. If any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. But if a new record date for the adjourned meeting is or must be fixed (see Section 2.05 of this Article II), then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.04, to those persons who are shareholders as of the new record date. (c) Waiver of Notice. A shareholder may waive notice of meeting (or any notice required by the Act, Articles of Incorporation, or Bylaws), by a writing signed by the shareholder entitled to the notice, which is delivered to the Corporation (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called. Except as provided in this Section 2.04(d), or as provided in the Corporation's Articles of Incorporation, or otherwise in the Act, the notice of an annual shareholder meeting need not include a description of the purpose or purposes for which the meeting is called. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the Articles of Incorporation (including any restated articles requiring shareholder approval); (2) a plan of merger or share exchange; (3) the sale, lease, exchange or other disposition of all, or substantially all, of the Corporation's property; (4) the dissolution of the Corporation; or (5) the removal of a director, the notice must so state and be accompanied by, respectively, a copy or summary of the: (1) articles of amendment; (2) plan of merger or share exchange; or (3) transaction for disposition of the Corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders are, or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Section 180.1301 of the Act. If the Corporation issues, or authorizes the issuance of shares for promissory notes or for promises to render services in the future, the Corporation shall, with or before the notice of the next shareholder meeting, report in writing to all the shareholders the number of shares authorized or issued, and the consideration received. Likewise, if the Corporation indemnifies or advances expenses to a director, this shall be reported to all the shareholders with or before notice of the next shareholder's meeting. Section 2.05 Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or any adjournment thereof, or shareholders entitled to receive payment of any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be not more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no such record date is fixed, the record date for determination of such shareholders shall be at the close of business on: (a) With respect to an annual shareholder meeting or any special shareholder meeting called by the Board of Directors or any person specifically authorized by the Board or these Bylaws to call a meeting, the day before the first notice is delivered to shareholders; (b) With respect to a special shareholder's meeting demanded by the shareholders, the date the first shareholder signs the demand; (c) With respect to the payment of a share dividend, the date the Board authorizes the share dividend; (d) With respect to actions taken in writing without a meeting (pursuant to Article II, Section 2.11), the date the first shareholder signs a consent; (e) With respect to a distribution to shareholders, (other than one involving a repurchase or acquisition of shares), the date the Board authorizes the distribution; and (f) With respect to any other matter for which such a determination is required, as provided by law. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the Board of Directors fixes a new record date which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. Section 2.06 Voting Lists. The officer or agent having charge of the stock transfer books for shares of the Corporation shall make, before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. The list must be arranged by voting group, if such exists, and within each voting group by class or series of shares. The shareholder list shall be subject to inspection at the Corporation's principal office by any shareholder at any time during usual business hours for any proper purpose, beginning two (2) business days after notice is given of the meeting for which the list was prepared. Such list also shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the meeting for purposes related to the meeting. A shareholder, or his or her agent or attorney, is entitled on written demand to inspect and, subject to the requirements of the Act and of Section 2.12(c), to copy the list during regular business hours and at the shareholder's expense, during the period it is available for inspection. The Corporation shall maintain the shareholder list in written form or in another form capable of conversion into written form within a reasonable time. Section 2.07 Shareholder Quorum and Voting Requirements. If the Articles of Incorporation or the Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by the voting group. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Unless the Articles of Incorporation or the Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. If the Articles of Incorporation or the Act provides for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation or the Act require a greater number of affirmative votes. Section 2.08 Proxies. Except as otherwise provided by the Act, at all meetings of shareholders, a shareholder may vote in person, or vote by proxy which is executed in writing by the shareholder or which is executed by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the Corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. Unless otherwise provided in the appointment form, a proxy appointment may be revoked at any time before it is voted, either by written notice filed with the Secretary or other officer or agent of the Corporation authorized to tabulate votes, or by oral notice given by the shareholder during the meeting. The presence of a shareholder who has filed his or her proxy appointment shall not of itself constitute a revocation. Section 2.09 Voting of Shares. Unless otherwise provided in the Articles of Incorporation or the Act, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Except as provided by specific court order, no shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation are held by the Corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. Provided, however, the preceding sentence shall not limit the Corporation's power to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. Section 2.10 Corporation's Acceptance of Votes. (a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the Corporation, if acting in good, faith, is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder. (b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of its shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder if: (1) the shareholder is an entity as defined in the Act and the name signed purports to be that of an officer or agent of the entity; (2) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; (3) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, and proxy appointment; (4) the name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to the vote, consent, waiver, or proxy appointment; (5) two or more persons are the shareholder as covenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all the co-owners. (c) The Corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the shareholder. (d) The Corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the shareholder for the consequences of the acceptance or rejection. (e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise. Section 2.11 Informal Action By Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the Corporation for inclusion in the minute book. Action may not, however, be taken under this section with respect to an election of directors for which shareholders may vote cumulatively. If the act to be taken requires that notice be given to non-voting shareholders, the Corporation shall give the non-voting shareholders written notice of the proposed action at least 10 days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document. Section 2.12 Shareholder's Rights to Inspect Corporate Records. (a) Minutes and Accounting Records. The Corporation shall keep as permanent records minutes of all meetings of its shareholders and Board of Directors, a record of all actions taken by the shareholders or Board of Directors without a meeting, and a record of all actions taken by any committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation. The Corporation shall maintain appropriate accounting records. (b) Absolute Inspection Rights of Records Required at Principal Office. If a shareholder gives the Corporation written notice of his or her demand at least five (5) business days before the date on which he or she wishes to inspect and copy, the shareholder (or his or her agent or attorney) has the right to inspect, during regular business hours, any of the following records, all of which the Corporation is required to keep at its principal office: (1) its Articles or Restated Articles of Incorporation and all amendments to them currently in effect; (2) its Bylaws or Restated Bylaws and all amendments to them currently in effect; (3) resolutions adopted by its Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding; (4) the minutes of all shareholders' meetings, and records of all action taken by shareholders without a meeting, for the past three (3) years; (5) all written communications to shareholders generally within the past three (3) years, including the financial statement furnished for the past three (3) years to the shareholders; (6) a list of the names and business addresses of its current directors and officers; and (7) its most recent annual report delivered to the Secretary of State. (c) Conditional Right to Inspect and Copy. In addition, if a shareholder who has been a shareholder of the Corporation for at least six (6) months or who owns at least five percent (5.0%) of the outstanding stock of the Corporation gives the Corporation a written demand made in good faith and for a proper purpose at least five (5) business days before the date on which the shareholder wishes to inspect and copy, the shareholder describes with reasonable particularity his or her purpose and the records the shareholder desires to inspect, and the records are directly connected with the shareholder's purpose, a shareholder (or his or her agent or attorney) is entitled to inspect and copy, during regular business hours at a reasonable location specified by the Corporation, any of the following records of the Corporation: (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors on behalf of the Corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or Board of Directors without a meeting; (2) the Corporation's accounting records; and (3) the record of shareholders (compiled no earlier than the date of the shareholder's demand). (d) Copy Costs. The right to copy records includes, if reasonable, the right to receive copies made by photographic, xerographic, or other means. The Corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge may not exceed the estimated cost of production or reproduction of the records. (e) Shareholder Includes Beneficial Owner. For purposes of this Section 2.12, the term "shareholder" shall include a beneficial owner whose shares are held in a voting trust or by a nominee in his or her behalf. Section 2.13 Preparation and Delivery of Financial Statements. (a) Within one hundred twenty (120) days after the close of each fiscal year, the Corporation shall prepare annual financial statements, which may be consolidated or combined statements of the Corporation and one or more of its subsidiaries, as appropriate, that include a balance sheet as of the end of the fiscal year, an income statement for that year, and a statement of changes in shareholders' equity for the year unless that information appears elsewhere in the financial statements. If financial statements are prepared for the Corporation on the basis of generally accepted accounting principles, the annual financial statements also must be prepared on that basis. (b) On written request from any shareholder, the Corporation shall mail such shareholder the latest financial statements. If the annual financial statements are reported upon by a public accountant, such report must accompany them. If not, the statements must be accompanied by a statement of the President or the person responsible for the Corporation's accounting records: (1) stating his or her reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and (2) describing any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year. Section 2.14 Dissenters' Rights. Each shareholder shall have the right to dissent from action by the Corporation and obtain payment for his or her shares when so authorized by the Act, the Articles of Incorporation, these Bylaws, or by resolution of the Board of Directors. Section 2.15 Conduct of Meetings. The President, or in his or her absence the Vice-President, and in his or her absence, any person chosen by the shareholders present, shall call the meeting of the shareholders to order and shall act as Chairman of the meeting, and the Secretary of the Corporation shall act as Secretary of all meetings of the shareholders, except that the presiding officer may appoint any Assistant Secretary or other person to act as Secretary of the meeting. ARTICLE III BOARD OF DIRECTORS Section 3.01 General Powers. All corporate powers shall be exercised by or under the authority of, and the Corporation's business and affairs shall be managed under the direction of, the Board of Directors. Section 3.02 Election. Unless otherwise provided in the Articles of Incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Section 3.03 Number, Tenure and Qualification. The number of directors shall be fixed by a resolution adopted by a majority of the directors then in office, or by amendment of these Bylaws, but in no event shall there be less than three (3) directors, and a decrease in the number of directors shall not shorten the term of office of an incumbent director. Each director shall be elected at the Corporation's annual meeting of the shareholders and shall hold office until the next annual meeting of shareholders and until his or her successor shall have been elected and qualified or until his or her death, resignation or removal from office in the manner provided by law or the Bylaws of the Corporation. Directors need not be residents of the State of Wisconsin or shareholders of the Corporation. Section 3.04 Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of shareholders, and each adjourned session thereof. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. Any such regular meeting may be held by any means of communication as permitted by Section 3.09. Section 3.05 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President, Vice President or any one (1) director. The person or persons authorized to call special meetings of the Board of Directors may fix any time and any place, either within or without the State of Wisconsin, as the time and place for holding any special meeting of the Board of Directors called by them. If no place is fixed by the person calling the meeting, the place of meeting shall be the Corporation's principal office in the State of Wisconsin. Any such special meeting may be held by any means of communication as permitted by Section 3.09. Section 3.06 Notice of Special Meetings; Waiver of Notice. Notice stating the time and place of any special meeting of the Board of Directors shall be given at least seventy-two (72) hours previously thereto by written notice delivered personally or mailed to each director at his or her business address, or such other address as designated in writing to the Secretary, or by telephone or telegram. If mailed, such notice shall be deemed to be effective with the earlier of: (1) when received, or (2) five days after deposit in the United States Mail, addressed to the director's business office, with postage thereon prepaid; or (3) the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the director. If notice be given by telephone or telegram, such notice shall be deemed to be delivered when the notice is given personally by telephone or when the telegram is delivered to the telegraph company. Whenever any notice is required to be given to any director of the Corporation under the provisions of these Bylaws or under the provisions of the Articles of Incorporation or under the provisions of any statute, a waiver thereof in writing, signed at any time, whether before or after the time of the meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of the business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 3.07 Director Quorum. Except as otherwise specified by law or the Articles of Incorporation or these Bylaws, a majority of the number of directors fixed in the manner provided by Section 3.03 of this Article III shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but though less than such quorum is present at a meeting, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the act of a greater number is required by the Act, the Articles of Incorporation or these Bylaws. A majority of the number of directors appointed to serve on a committee as authorized in Section 3.16 of these Bylaws shall constitute a quorum for the transaction of business at any committee meeting. These provisions shall not, however, apply to the determination of a quorum for actions taken under emergency Bylaws or any other provisions of these Bylaws that fix different quorum requirements. Section 3.08 Voting Requirement. The affirmative vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors or a committee of the Board of Directors. This provision shall not, however, apply to any action taken by the Board of Directors pursuant to Section 3.15 or Article IX of these Bylaws, or in the event the affirmative vote of a greater number of directors is required by the Act, the Articles of Incorporation, or any other provision of these Bylaws. Section 3.09 Meetings by Electronic Means of Communication. To the extent provided in these Bylaws, the Board of Directors, or any committee of the Board, may, in addition to conducting meetings in which each director participates in person, and notwithstanding any place set forth in the notice of the meeting or these Bylaws, conduct any regular or special meeting by the use of any electronic means of communication, provided (1) all participating directors may simultaneously hear each other during the meeting, or (2) all communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors. Before the commencement of any business at a meeting at which any directors do not participate in person, all participating directors shall be informed that a meeting is taking place at which official business may be transacted. Section 3.10 Director's Assent. A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon the director's arrival) to holding it or transacting business at the meeting; or (2) the director dissents or abstains from the action taken and minutes of the meeting are prepared that show the director's dissent or abstention from the action; (3) the director dissents or abstains from an action taken, minutes of the meeting are prepared that fail to show the director's dissent or abstention from the action taken and the director delivers to the Corporation a written notice of that failure that complies with Section 180.0141 of the Act promptly after receiving the minutes; or (4) the director delivers written notice of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. Section 3.11 Conduct of Meetings. The President, and in his absence the Vice-Presidents in the order appointed under Section 4.07 of Article IV, and in their absence, any director chosen by the directors then present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the secretary, the presiding officer may appoint any Assistant secretary or any director or other person present to act as secretary of the meeting. Section 3.12 Removal. Any director or the entire Board of Directors may be removed from office with or without cause by the affirmative vote of a majority of the shares outstanding and entitled to vote for the election of such director(s) taken at a special meeting of shareholders called for that purpose, and any vacancy so created may be filled by the shareholders. Section 3.13 Vacancies. Any vacancy occurring on the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled by the shareholders. During such time as the shareholders fail or are unable to fill such vacancies then, and until the shareholders act, the vacancy may be filled (1) by the board of directors, or (2) if the directors remaining in office constitute fewer than a quorum of the Board, by the affirmative vote of a majority of all directors remaining in office. Section 3.14 Compensation and Expenses. The Board of Directors, irrespective of any personal interest of any of its members, may (1) establish reasonable compensation of all directors for services to the Corporation as directors or may delegate this authority to an appropriate committee, (2) provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments to directors and to their estates, families, dependents, or beneficiaries for prior services rendered to the Corporation by the directors, and (3) provide for reimbursement of reasonable expenses incurred in the performance of the directors' duties, including the expense of traveling to and from Board meetings. Section 3.15 Informal Action By Directors. Any action required or permitted by the Articles of Incorporation or Bylaws or any provision of law to be taken by the Board of Directors at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken shall be signed by all of the directors then in office, and filed with the Corporation's records. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting and may be described as such in any document. Section 3.16 Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors may designate one or more committees, each committee to consist of COMMITTEE or more directors elected by the Board of Directors, which to the extent provided in said resolution, as initially adopted, and as thereafter supplemented or amended by further resolution adopted by a like vote, shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the Corporation's business and affairs, except action in respect to the (1) authorization of distributions, (2) the approval or proposal to shareholders of action for which the Act requires approval by shareholders, (3) filling vacancies on the Board of Directors or its committees, (4) amending the Articles of Incorporation pursuant to Board authority, (5) adopting, amending or repealing Bylaws, (6) approving a plan of merger not requiring shareholder approval, (7) the authorization or approval to reorganize shares, except according to a formula or method prescribed by the Board of Directors, (8) the authorization or approval of the issuance or sale or contract for sale of shares, or (9) the determination of the designation and relative rights, preferences and limitations of a class or series of shares. Sections 3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 3.10, 3.11 and 3.15 of this Article III, which govern meetings, actions without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors, apply to committees and their members. ARTICLE IV OFFICERS Section 4.01 Number. The Corporation's principal officers shall be a President, a Vice President, a Secretary, and a Treasurer, each of whom shall be appointed by the Board of Directors. Additional officers and assistant officers, including any Vice Presidents, may be appointed by the Board of Directors as the Board deems appropriate. If there is more than one Vice President, the Board may establish designations for the Vice Presidencies to identify their functions or their order. There may, in addition, be a chairperson or co-chairperson of the board, whenever the Board shall see fit to cause such office or offices to be filled. Any two or more offices may be held simultaneously by the same person. Section 4.02 Appointment and Term of Office. The Corporation's officers shall be appointed for a term as determined by the Board of Directors. If no term is specified, they shall hold office until their successor shall have been duly appointed and shall have qualified or until the officer's death, resignation or removal from office in the manner hereinafter provided. The designation of a specified term does not grant to the officer any contract rights, and the Board can remove the officer at any time prior to the termination of such term. Section 4.03 Removal. Any officer or agent appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the Corporation's best interests will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of itself create contract rights. Section 4.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or other reason shall be filled in the manner prescribed for regular appointments to the office. Section 4.05 Powers, Authority and Duties. The Corporation's officers shall have the powers and authority conferred in the duties prescribed by the Board of Directors or the officer who appointed them in addition to and to the extent not inconsistent with those specified in other sections of this Article IV. Section 4.06 The President. The President shall be the Corporation's principal executive officer and, subject to the control of the Board of Directors, shall in general supervise and control all of the Corporation's business and affairs. The President shall, when present, preside at all meetings of the shareholders and of the Board of Directors. The President may sign, with the Secretary or any other proper officer of the Corporation authorized by the Board of Directors, certificates for shares of the Corporation and deeds, mortgages, bonds, contracts, or other instruments in the ordinary course of business or that the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by the Bylaws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incidental to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. Section 4.07 The Vice President. In the absence of the President or in the event of the President's death or inability or refusal to act as directed by the Board of Directors, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated at the time of their appointment, or in the absence of any designation, then in order of their appointment) shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or an Assistant Secretary certificates for shares of the Corporation; and shall perform such other duties as from time to time may be assigned by the President or by the Board of Directors. Section 4.08 The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and see that books, reports, statements, certificates and all other documents and records required by law are properly kept and filed; (d) keep a register of the post office address of each shareholder, which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the Corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the Corporation; and (g) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. Section 4.09 The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all of the Corporation's funds and securities; (b) receive and give receipts for money due and payable to the Corporation from any source whatsoever, and deposit all funds of the Corporation in such banks, trust companies, or other depositories as shall be selected in accordance with the provisions of Article V of these Bylaws, and (c) in general perform all of the duties incidental to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. Section 4.10 Assistant Secretaries and Assistant Treasurers. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice President certificates for shares of the Corporation and issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers if required by the Board of Directors, shall give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. Section 4.11 Salaries. Officers' salaries shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. ARTICLE V CONTRACTS, LOANS, CHECKS AND DEPOSITS Section 5.01 Contracts. The Board of Directors may authorize any individual officer or agent or number of officers or agents to enter into any contract or to execute and deliver any instrument in the Corporation's name and on its behalf, and such authorization may be general or confined to specific instances. Section 5.02 Loans. No loans shall be contracted on the Corporation's behalf and no indebtedness shall be incurred in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. Section 5.03 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the Corporation's name, shall be signed by such officer or officers, agents or agents of the Corporation and in such manner as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. Section 5.04 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the Corporation's credit in such banks, trust companies or other depositories as may be selected by or under the authority of the Board of Directors. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.01 Certificates for Shares. (a) Content Certificates representing shares of the Corporation shall at a minimum state on their face the name of the issuing corporation and that it is formed under the laws of Wisconsin; the name of the person to whom issued; and the number and class of shares and the designation of the series, if any, the certificate represents; and be in such form as determined by the Board of Directors. Such certificates shall be signed (either manually or by facsimile) by the President or a Vice President and by the Secretary or an Assistant Secretary. Each certificate for shares shall be consecutively numbered or otherwise identified. (b) Legend as to Class or Series If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) must be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the Corporation will furnish the shareholders this information on request in writing and without charge. (c) Shareholder List The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the Corporation. (d) Transferred Shares All certificates surrendered to the Corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefor upon such terms and indemnification of the Corporation as the Board of Directors may prescribe. Section 6.02 Registration of the Transfer of Shares. Registration of the transfer of shares of the Corporation shall be made only on the Corporation's stock transfer books by the holder of record thereof or by his or her legal representative, who shall furnish proper evidence of authority to transfer, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and on surrender for cancellation of the certificate for such shares. The person in whose name shares stand on the Corporation's books shall be deemed by the Corporation to be the owner thereof for all purposes. Section 6.03 Restrictions on Transfer. The Board of Directors or shareholders may impose restrictions on the transfer of shares. A restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the Corporation upon the transfer of such shares. Section 6.04 Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate of shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the Corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors, including the furnishing of an indemnity bond if so required. Section 6.05 Consideration for Shares. The Corporation's shares may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, promissory notes, in other property, tangible or intangible, or in labor or services actually performed or to be performed for the Corporation. When payment of the consideration for which shares are to be issued shall have been received by the Corporation, such shares shall be deemed to be fully paid and nonassessable by the Corporation. No certificate shall be issued for any share until such share is fully paid. If the consideration to be paid for share consists, in whole or part, of a promissory note or a contract for services to be performed for the Corporation, the Board of Directors may, in its discretion, elect to hold those shares in escrow or otherwise restrict their transfer. In the event that shares are so escrowed, and the shareholder defaults under his or her obligations under the promissory note or the contract for services, as applicable, the Corporation may, in addition to any other legal or equitable remedies, cancel all or part of the escrowed shares. Section 6.06 Acquisition of Shares. The Corporation may acquire its own shares and unless otherwise provided in the Articles of Incorporation, the shares so acquired constitute authorized but unissued shares. Section 6.07 Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as they may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation. ARTICLE VII FISCAL YEAR The Board of Directors shall by resolution establish the Corporation's fiscal year. ARTICLE VIII DISTRIBUTIONS The Board of Directors may from time to time authorize, and the Corporation may make distributions (including dividends on its outstanding shares) in the manner and upon the terms and conditions provided by law, the Articles of Incorporation and the resolutions of the Board of Directors. ARTICLE IX INDEMNIFICATION Section 9.01 Mandatory Indemnification. The Corporation shall indemnify a director or officer as follows: (a) To the extent he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding, if the director or officer was a party because he or she is or was at the time of the events upon which the proceeding was based a director or officer of the Corporation. A director or officer shall exercise his or her right to indemnification under this Section 9.01 of Article IX by delivering a written demand for indemnification to the Corporation's Treasurer, or the President if the party seeking indemnification is the Treasurer. (b) In all cases not included in Section 9.01(a) of this Article IX, the Corporation shall indemnify a director or officer against liability incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is or was at the time of the events upon which the proceeding was based a director or officer of the Corporation, unless liability was incurred because the director or officer breached or failed to perform a duty he or she owes to the Corporation and the breach or the failure to perform constitutes: (i) A willful failure to deal fairly with the Corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) A violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (iii) A transaction from which the director or officer derived an improper personal benefit; or (iv) Willful misconduct. (c) Whether a director or officer of the Corporation shall be entitled to indemnification under Section 9.01(b) shall be determined in accordance with the procedures established in Section 9.02 of this Article IX. (d) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director or officer is not required under this subsection. Section 9.02 Determination of Right to Indemnification. A director or officer seeking indemnification under Section 9.01(b) of this Article IX shall first make a written request to the Corporation's Treasurer, or the Corporation's President, if the person seeking indemnification is the Treasurer, for such indemnification. Determination of whether indemnification is required shall be made by one of the following means: (a) By a majority vote of a quorum of the Board of Directors consisting of directors who are not at the time parties to the same or related proceedings. If such quorum of disinterested directors cannot be obtained, by a majority vote of a committee duly appointed by the Board of Directors and consisting solely of two (2) or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee. (b) By independent legal counsel selected by a majority vote of a quorum of the Board of Directors or its committee consisting of directors who are not at the time parties to the same or related proceedings or, if such a quorum cannot be obtained, by a majority vote of the full Board of Directors, including directors who are parties to the same or related proceedings. (c) By the affirmative majority vote, or unanimous written consent, of the Corporation's shareholders. However, shares owned by or voted under the control of persons who at the time of the vote or consent are parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination. (d) By a panel of three (3) arbitrators consisting of one (1) arbitrator selected by those directors entitled under subsection (b) above to select independent legal counsel, one (1) arbitrator selected by the director or officer seeking indemnification and one (1) arbitrator selected by the other two (2) arbitrators. (e) By a court of competent jurisdiction upon application by the director or officer for an initial determination of entitlement to indemnification or for review by the court of an adverse determination. Indemnification shall be ordered if the court determines that the director or officer is entitled to indemnification under Section 9.01 of this Article IX or that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. If the director of officer is successful in obtaining indemnification by order of the court, in addition to indemnification against all other expenses and liability, the director or officer shall be reimbursed for expenses reasonably incurred in pursuing his or her request for indemnification. The director or officer of the Corporation seeking indemnification shall designate in his or her request for indemnification the method of making the indemnification determination. Section 9.03 Advance of Expenses as Incurred. The Corporation shall, upon written request by the director or officer, pay for or reimburse the reasonable expenses incurred by a director or officer who is a party to a proceeding, as those expenses are incurred, if the director or officer furnishes the Corporation a written affirmation of his or her good faith belief that he or she has not breached his or her duties to the Corporation, and the director or officer furnishes the Corporation with a written undertaking, executed personally or on his or her behalf, to repay the allowance to the extent that it is ultimately determined that the indemnification is not required. The Corporation may accept the undertaking without reference to his or her ability to repay the allowance, and the undertaking may be secured or unsecured. Section 9.04 Insurance. The Corporation may purchase and maintain insurance on behalf of its directors and officers, or to reimburse itself, against liability asserted or incurred and expenses incurred by the director or officer or corporation in connection with a proceeding brought against the director or officer in his capacity as a director or officer or arising from his status as a director or officer, regardless of whether the Corporation is required or authorized to indemnify the individual against the same liability pursuant to the provisions hereof. Section 9.05 Definitions. The following terms used in this Article IX shall have the indicated meanings: (a) "Director" or "officer" means an individual who (i) is or was a director or officer of the Corporation; (ii) an individual who, while a director or officer of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, member of any governing or decision-making committee, employee or agent of another corporation, partnership, joint venture or other enterprise; or (iii) while a director or officer of the Corporation, is or was serving an employee benefit plan because his or her duties to the Corporation also impose duties on, or otherwise involve services by, the person to the plan or to the participants in or beneficiaries of the plan. "Director" or "officer" includes the estate or personal representatives of a director or officer. (b) "Expenses" include all fees, costs, charges, attorneys' counsel fees and other expenses and disbursements incurred in connection with a proceeding. (c) "Liability" includes the obligation to pay a judgment, settlement, penalty, fine, assessment or forfeiture, including an excise tax assessed with respect to or on an employee benefit plan, and reasonable expenses. (d) "Party" includes an individual who was or is, or who is threatened to be made, or is at risk of becoming, a named defendant or respondent in a proceeding. (e) "Proceeding" means any threatened, pending or completed action, suit, claim, litigation, appeal, arbitration or other proceeding, whether civil, criminal, administrative or investigative, formal or informal, predicated on foreign, federal, state or local law, brought by or in the right of the Corporation or by any other person or by any governmental or administrative body. Section 9.06 Savings Clause. To the extent any court of competent jurisdiction shall determine that the indemnification provided under this Article IX shall be invalid as applied to a particular claim, issue or matter, the provisions hereof shall be deemed amended to allow and require indemnification to the maximum extent permitted by law. Section 9.07 Effective Date. This Article IX shall be deemed to be a contract between the Corporation and each previous, current or future director or officer. The provisions of this Article IX shall apply to all proceedings commenced after the date hereof, whether rising from any action taken or failure to act before or after such adoption. No amendment, modification or repeal of this Article IX shall diminish the rights provided hereby or diminish the right to indemnification with respect to any claim, issue or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act prior to such amendment, modification or repeal. ARTICLE X CORPORATE SEAL The Corporation shall have no seal. ARTICLE XI AMENDMENTS Section 11.01 Board of Directors The Board of Directors, from time to time, by vote of a majority of the directors then in office, may adopt, amend or repeal any and all of the Corporation's Bylaws, unless the Articles of Incorporation or the Act reserve this power exclusively to the shareholders in whole or in part; or the shareholders, in adopting, amending or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw. Section 11.02 Shareholders. The shareholders, from time to time, by vote of a majority of the shares entitled to vote, may adopt, amend or repeal any and all of the Corporation's Bylaws. Section 11.03 Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the Bylaws then in effect but which is taken or authorized by the unanimous written consent of the shareholders or Board of Directors or by the affirmative vote of not less than the number of shares or the number of directors required to amend the Bylaws so that the Bylaws would be consistent with such action, shall be given the same effect as though the Bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized. EX-3.21 20 manx3-21.txt ARTICLES OF SERVEND INTERNATIONAL Exhibit 3.21 ARTICLES OF INCORPORATION OF SERVEND INTERNATIONAL, INC. FIRST. The name of the corporation is SerVend International, Inc. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be three (3) in number, are as follows: NAME POST-OFFICE ADDRESS ---- ------------------- F. M. Butler P. O. Box 66 Manitowoc, WI 54221-0066 E. D. Flynn P. O. Box 66 Manitowoc, WI 54221-0066 R. R. Friedl P. O. Box 66 Manitowoc, WI 54221-0066 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS ---- ------------------- Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.22 21 manx3-22.txt BYLAWS OF SERVEND INTERNATIONAL Exhibit 3.22 BYLAWS OF SERVEND INTERNATIONAL, INC. (f/k/a SI Acquisition, Inc.) ADOPTED SEPTEMBER 16, 1997 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1997, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be three (3), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of SerVend International, Inc., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 16th day of September, 1997. /s/ E. D. Flynn ---------------------------------------- E. D. Flynn, Secretary EX-3.23 22 manx3-23.txt ARTICLES OF MANITOWOC BEVERAGE SYSTEMS, INC. Exhibit 3.23 ARTICLES OF INCORPORATION OF MANITOWOC BEVERAGE SYSTEMS, INC. FIRST. The name of the corporation is Manitowoc Beverage Systems, Inc. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be three (3) in number, are as follows: NAME POST-OFFICE ADDRESS Terry Growcock P.O. Box 66 Manitowoc WI 54221-0066 E. D. Flynn P.O. Box 66 Manitowoc WI 54221-0066 R. R. Friedl P.O. Box 66 Manitowoc WI 54221-0066 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202-4497 EX-3.24 23 manx3-24.txt BYLAWS OF MANITOWOC BEVERAGE SYSTEMS, INC. Exhibit 3.24 BYLAWS OF MANITOWOC BEVERAGE SYSTEMS, INC. ADOPTED OCTOBER 2nd, 1998 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1999, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORs Section 1. The number of directors which shall constitute the whole board shall be three (3), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII INDEMNIFICATION The Corporation shall, to the fullest extent permitted or required by the Nevada General Corporation Law ("Statute"), including any amendments thereto (but in the case of any such amendment, only to the extent such amendment permits or requires the corporation to provide broader indemnification rights than prior to such amendment), indemnify its directors and officers against any and all liabilities, and advance any and all reasonable expenses, incurred thereby in any proceeding to which any such director or officer is a party because he or she is a director or officer of the corporation. The rights to indemnification granted hereunder shall not be deemed exclusive of any other rights to indemnification against liabilities or the advancement of expenses which a director or officer may be entitled under any written agreement, board resolution, vote of shareholders, the statute or otherwise. The corporation may, but shall not be required to, supplement the foregoing rights to indemnification against liabilities and advancement of expenses under this Article VIII by purchasing insurance on behalf of any one or more of such directors, officers, whether or not the corporation would be obligated to indemnify against liabilities or advance expenses to such director or officer under this Article VIII. ARTICLE IX AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of Manitowoc Beverage Group, Inc., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 2nd day of October, 1998. /s/ E. D. Flynn ---------------------------------------- E. D. Flynn, Secretary EX-3.25 24 manx3-25.txt ARTICLES OF MANITOWOC CRANE COMPANIES Exhibit 3.25 ARTICLES OF INCORPORATION OF MANITOWOC CRANE COMPANIES, INC. FIRST. The name of the corporation is Manitowoc Crane Companies, Inc. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be two (2) in number, are as follows: NAME POST-OFFICE ADDRESS R. L. McDonald 500 South 16th Street Manitowoc, WI 54221 F. M. Butler 500 South 16th Street Manitowoc, WI 54221 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.26 25 manx3-26.txt BYLAWS OF MANITOWOC CRANE COMPANIES Exhibit 3.26 BYLAWS OF MANITOWOC CRANE COMPANIES, INC. ADOPTED NOVEMBER 1, 1996 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1997, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be two (2), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of the stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of Manitowoc Foodservice Group, Inc., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 1st day of November, 1996. /s/ F. M. Butler ---------------------------------------- F. M. Butler Secretary EX-3.27 26 manx3-27.txt ARTICLES OF MANITOWOC CP, INC. Exhibit 3.27 ARTICLES OF INCORPORATION OF MANITOWOC CP, INC. FIRST. The name of the corporation is Manitowoc CP, Inc. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be two (2) in number, are as follows: NAME POST-OFFICE ADDRESS R. L. McDonald 500 South 16th Street Manitowoc, WI 54221 F. M. Butler 500 South 16th Street Manitowoc, WI 54221 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.28 27 manx3-28.txt BYLAWS OF MANITOWOC CP, INC. Exhibit 3.28 BYLAWS OF MANITOWOC CP, INC. ADOPTED NOVEMBER 1, 1996 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1997, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be two (2), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall required and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of Manitowoc Foodservice Group, Inc., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 1st day of November, 1996. /s/ F.M. Butler ---------------------------------------- F. M. Butler Secretary EX-3.29 28 manx3-29.txt ARTICLES OF MANITOWOC EQUIPMENT WORKS, INC. Exhibit 3.29 ARTICLES OF INCORPORATION OF MANITOWOC EQUIPMENT WORKS, INC. I, the undersigned, for the purpose of forming a corporation under the General Corporation Law of the State of Nevada, do hereby certify: ARTICLE I. Name The name of the corporation is Manitowoc Equipment Works, Inc. ARTICLE II. Registered Office; Resident Agent The corporation's registered office in the State of Nevada is One East First Street, Reno, Nevada 89501. The name of the corporation's resident agent at such address is The Corporation Trust Company of Nevada. ARTICLE III. Capital Stock The aggregate number of shares which the corporation shall have authority to issue is 25,000, of a single class designated as "Common Stock", having a par value of $0.01 per share. Article IV. Governing Body The governing body of the corporation shall consist of directors, the number of which may be fixed from time to time by the By-laws of the Corporation. The initial Board of Directors shall consist of three (3) members, whose names and addresses are as follows: Name Address Fred M. Butler 700 East Magnolia Avenue Suite B Manitowoc, WI 54221 Robert R. Friedl 700 East Magnolia Avenue Suite B Manitowoc, WI 54221 E. Dean Flynn 700 East Magnolia Avenue Suite B Manitowoc, WI 54221 ARTICLE V. Incorporator The name and address of the sole incorporator executing these Articles of Incorporation are as follows: Name Address Thomas A. Simonis c/o Quarles & Brady 411 East Wisconsin Avenue Milwaukee, Wisconsin 53202 EX-3.30 29 manx3-30.txt BYLAWS OF MANITOWOC EQUIPMENT WORKS, INC. Exhibit 3.30 BY-LAWS OF MANITOWOC EQUIPMENT WORKS, INC. (a Nevada corporation) INTRODUCTION - VARIABLE REFERENCES Date of Adoption of these By-Laws: December 7, 1993 Date of Incorporation: December 7, 1993 0.01. The annual shareholders' meeting will be held on the first Monday in November. 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): three (3) * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 72 hours if by mail; and (b) Not less than 48 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. * These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01 Principal and Business Officers. The corporation shall establish a principal business office in the State of Nevada and shall maintain a resident agent in charge of such office. The corporation may have such principal and other business offices, either within or without the State of Nevada, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02 Registered Office. The registered office of the corporation required by the Nevada General Corporation Law to be maintained in the State of Nevada shall be identical with the principal office in the State of Nevada, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01 Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Nevada, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02 Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or the articles of incorporation, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. Such request shall state the purpose or purposes of the proposed meeting. 2.03 Place of Meeting. The Board of Directors may designate any place, either within or without the State of Nevada, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Nevada, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Nevada or such other suitable place in the country of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by the vote of a majority of the shares represented thereat. 2.04 Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) no more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. Notice sent to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. 2.05 Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, sixty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06 Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07 Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08 Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President, in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 2.09 Proxies. At any meeting of the shareholders, any shareholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the Secretary of the corporation. 2.10 Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11 Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the Board of Directors or by the by-laws of such other corporation. (b) Legal Representatives or Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the name of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. 2.12 Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Nevada General Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13 Shareholders' Action Without Meeting. Except as may be otherwise required by the laws of the State of Nevada, any action, except election of directors, which may be taken by the vote of shareholders at a meeting, may be taken without a meeting if authorized by the written consent of shareholders holding at least a majority of the voting power; provided, however, that if any greater proportion of voting power is required for such action at a meeting, then such greater proportion of written consent shall be required. In no instance where action is authorized by such written consent need a meeting of shareholders be called or noticed. ARTICLE III. BOARD OF DIRECTORS 3.01 General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02 Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote on written consent of the holders of two-thirds of the outstanding shares entitled to vote for the election of such directors. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Nevada or shareholders of the corporation, but at least one director must be a citizen of the United States of America. 3.03 Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Nevada for the holding of additional regular meetings without other notice than such resolution. 3.04 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Nevada as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Nevada. 3.05 Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail so addressed, with postage thereon prepaid. If notice is given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06 Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07 Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08 Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President, in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as a secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09 Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10 Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11 Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12 Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of one or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting or such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities, shall keep regular minutes of their proceedings and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13 Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01 Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one), a President, one or more Vice Presidents (if the Board of Directors determines to elect one or more), one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02 Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of Officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03 Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04 Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05 Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06 President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by resolution of the Board of Directors and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07 Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08 The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act, then the Senior Vice President, or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09 The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which address shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10 The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11 Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and the Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12 Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13 Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS: SPECIAL CORPORATE ACTS 5.01 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02 Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04 Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05 Voting of Securities Owned by This Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01 Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02 Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03 Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04 Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. Title to a certificate and to the shares represented thereby can be transferred only as provided by the Uniform Stock Transfer Act, Chapter 79 of the Nevada Statutes and the acts amendatory thereof and supplementary thereto. 6.05 Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares. 6.06 Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07 Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08 Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Nevada as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION 7.01 Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02 Indemnity of Officers and Directors. Every person who is or was a director or officer of the corporation, and any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor, shall (together with the heirs, executors and administrators of such person) be indemnified by the corporation against all costs, damages and expenses asserted against, incurred by or imposed upon him in connection with or resulting from any claim, action, suit or proceeding, including criminal proceedings, to which he is made or threatened to be made a party by reason of his being or having been such director or officer, except in relation to matters as to which a recovery shall be had against him by reason of his having been finally adjudged in such action, suit or proceeding to have been guilty of fraud in the performance of his duty as such officer or director. This indemnity shall include reimbursement of amounts and expenses incurred and paid in settling any such claim, action, suit or proceeding. In the case of a criminal action, suit or proceeding, a conviction or judgment (whether based on a plea of guilty or nolo contendere or its equivalent, or after trial) shall not be deemed an adjudication that such director or officer is guilty of fraud in the performance of his duties, if such director or officer was acting in good faith in what he considered to be the best interests of the corporation and with no reasonable cause to believe that the action was illegal. The corporation, by its Board of Directors, may indemnify in like manner, or with any limitations, any employee or former employee of the corporation with respect to any action taken or not taken in his capacity as such employee. The foregoing rights of indemnification shall be in addition to all rights to which officers, directors or employees may be entitled as a matter of law. 7.03 Transactions With the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, providing that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly and severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if 1) the fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or 2) the fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or 3) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. ARTICLE VIII. GENERAL 8.01 Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation, the year when incorporated, and the words "Nevada" and "Corporate Seal". 8.02 Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01 By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02 By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03 Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.31 30 manx3-31.txt ARTICLES OF MANITOWOC FP, INC. Exhibit 3.31 ARTICLES OF INCORPORATION OF MANITOWOC FP, INC. FIRST. The name of the corporation is Manitowoc FP, Inc. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be two (2) in number, are as follows: NAME POST-OFFICE ADDRESS R. L. McDonald 500 South 16th Street Manitowoc WI 54221 F. M. Butler 500 South 16th Street Manitowoc WI 54221 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.32 31 manx3-32.txt BYLAWS OF MANITOWOC FP, INC. Exhibit 3.32 BYLAWS OF MANITOWOC FP, INC. ADOPTED NOVEMBER 1, 1996 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1997, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be two (2), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of the stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of Manitowoc Foodservice Group, Inc., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 1st day of November, 1996. /s/ F.M. Butler --------------------------------------- F. M. Butler Secretary EX-3.33 32 manx3-33.txt ARTICLES OF SERVEND SALES CORP. Exhibit 3.33 ARTICLES OF INCORPORATION OF SERVEND SALES CORP. FIRST. The name of the corporation is SerVend Sales Corp. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be three (3) in number, are as follows: NAME POST-OFFICE ADDRESS Terry Growcock P.O. Box 66 Manitowoc WI 54221-0066 E. D. Flynn P.O. Box 66 Manitowoc WI 54221-0066 R. R. Friedl P.O. Box 66 Manitowoc WI 54221-0066 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.34 33 manx3-34.txt BYLAWS OF SERVEND SALES CORP. Exhibit 3.34 BYLAWS OF SERVEND SALES CORP. ADOPTED JUNE 5, 1998 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1999, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be three (3), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of the stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of SerVend Sales Corp., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 5th day of June, 1998. /s/ E. D. Flynn ----------------------------------------- E. D. Flynn, Secretary EX-3.35 34 manx3-35.txt ARTICLES OF KMT SALES CORP. Exhibit 3.35 ARTICLES OF INCORPORATION OF KMT SALES CORP. FIRST. The name of the corporation is KMT Sales Corp. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be three (3) in number, are as follows: NAME POST-OFFICE ADDRESS Terry Growcock P.O. Box 66 Manitowoc WI 54221-0066 E. D. Flynn P.O. Box 66 Manitowoc WI 54221-0066 R. R. Friedl P.O. Box 66 Manitowoc WI 54221-0066 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.36 35 manx3-36.txt BYLAWS OF KMT SALES CORP. Exhibit 3.36 BYLAWS OF KMT SALES CORP. ADOPTED JUNE 5, 1998 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1999, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be three (3), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of the stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of KMT Sales Corp., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 5th day of June, 1998. /s/ E. D. Flynn ---------------------------------------- E. D. Flynn, Secretary EX-3.37 36 manx3-37.txt ARTICLES OF MANITOWOC FOODSERVICE COMPANIES Exhibit 3.37 ARTICLES OF INCORPORATION OF MANITOWOC FOODSERVICE COMPANIES, INC. FIRST. The name of the corporation is Manitowoc Foodservice Companies, Inc. SECOND. Its registered office in the State of Nevada is located at One East First Street, Reno, Nevada 89501. The name of its resident agent at that address is The Corporation Trust Company of Nevada. THIRD. The number of shares the corporation is authorized to issue is Ten Thousand (10,000) shares of Common Stock, no par value. FOURTH. The governing board of this corporation shall be known as directors, and the number of directors may from time to time be increased or decreased in such manner as shall be provided by the Bylaws of this corporation. The names and addresses of the first board of directors, which shall be two (2) in number, are as follows: NAME POST-OFFICE ADDRESS R. L. McDonald 500 South 16th Street Manitowoc WI 54221 F. M. Butler 500 South 16th Street Manitowoc WI 54221 FIFTH. The name and post-office address of the sole incorporator signing the articles of incorporation is as follows: NAME POST-OFFICE ADDRESS Thomas A. Simonis 411 East Wisconsin Avenue Milwaukee WI 53202 EX-3.38 37 manx3-38.txt BYALWS OF MANITOWOC FOODSERVICE COMPANIES Exhibit 3.38 BYLAWS OF MANITOWOC FOODSERVICE COMPANIES, INC. ADOPTED NOVEMBER 1, 1996 ARTICLE I OFFICES Section 1. The principal office shall be in the City of Reno, County of Washoe, State of Nevada. Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All annual meetings of the stockholders shall be held at the principal office of the corporation, or at such other place as may be designated by the Board of Directors. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1997, shall be held on the third Tuesday of October, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage prepaid, to each stockholder of record entitled to vote at such meeting not less then ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation. Section 10. Any action which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consents shall be required. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be two (2), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of the stockholders, and except as provided in Section 2 of this article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board. Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least 48 hours before the date and time of the meeting. Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. COMMITTEES OF DIRECTORS Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary for serving as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing. Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer, none of whom need be a member of the board. The board of directors may also choose one or more vice presidents. Section 3. The board of directors may appoint assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENT Section 8. The vice president (if one be elected) shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe. THE SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. THE TREASURER Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock. Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer or officers of such corporation. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of corporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal, if one is adopted by the board of directors, shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Nevada." ARTICLE VIII AMENDMENTS Section 1. These bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting. * * * * * I, THE UNDERSIGNED, being the secretary of Manitowoc Foodservice Group, Inc., DO HEREBY CERTIFY the foregoing to be the bylaws of said corporation, as adopted by the board of directors on the 1st day of November, 1996. /s/ F.M. Butler ----------------------------------------- F. M. Butler Secretary EX-3.39 38 manx3-39.txt ARTICLES OF MULTIPLEX COMPANY, INC. Exhibit 3.39 Articles of Incorporation (To be submitted in duplicate by an attorney or an incorporator) The undersigned natural person(s) of the age of eighteen years or more for the purpose of forming a corporation under the General and Business Corporation Law of Missouri adopts the following Articles of Incorporation: Article One The name of the corporation is Multiplex Company, Inc. Article Two The address, including street and number, if any, of the corporation's initial registered office in this state is 120 South Central Avenue, Clayton, MO 63105 and the name of its initial agent at such address is C T Corporation System. Article Three The aggregate number, class and par value, if any, of shares which the corporation shall have authority to issue shall be: 30,000 shares of Common Stock with a par value of $1.00 per share. The preferences, qualifications, limitations, restrictions, and the special or relative rights, including convertible rights, if any, in respect to the shares of each class are as follows: None. Article Four The extent, if any, to which the preemptive right of a shareholder to acquire additional shares is limited or denied. No holder of any stock of the Corporation shall have any preemptive right to purchase, subscribe for, or otherwise acquire any shares of stock of the corporation of any class now or hereafter authorized, or any securities exchangeable for a convertible into such shares. Article Five The name and place of residence of each incorporator is as follows: Name Street City Fredrick G. Lautz c/o Quarles & Brady LLP Milwaukee, Wisconsin 53202 411 E. Wisconsin Avenue Article Six (Designate which and complete the applicable paragraph.) |X| The number of directors to constitute the first board of directors is three. Thereafter the number of directors shall be fixed by, or in the manner provided by the bylaws. Any changes in the number will be reported to the Secretary of State within thirty calendar days of such change. (NOTE: If the number of directors is to be one or two, do not check this box.) OR [ ] The number of directors to constitute the board of directors is ___________________. (The number of directors to constitute the board of directors must be stated herein if there are to be less than three directors. The person to constitute the first board of directors may, but not need, be named.) Article Seven The duration of the corporation is perpetual (indicate either perpetual or the date the corporation expires). Article Eight The corporation is formed for the following purposes: In general, to carry on any business, not contrary to the laws of the State of Missouri pursuant to which this corporation is organized, and to have and exercise all the powers, rights and privileges conferred by the laws of Missouri upon corporations formed under such laws, and to do any or all of the things hereinbefore set forth to the same extent as natural persons might or could do. EX-3.40 39 manx3-40.txt BYLAWS OF MULTIPLEX COMPANY, INC. Exhibit 3.40 BY-LAWS OF MULTIPLEX COMPANY, INC. ********* ARTICLE I OFFICES Section 1. Principal Office: The principal office of the Corporation shall be located in the County of St. Louis, State of Missouri. The Corporation may have such other offices, either within or without the State of Missouri, as the business of the Corporation may require from time to time. Section 2. Registered Office: The registered office of the Corporation required by "The General and Business Corporation Law of Missouri" to be maintained in the State of Missouri may be, but need not be, identical with the principal office in the State of Missouri, and the address of the registered office may be changed from time to time by the Board of Directors. ARTICLE II SHAREHOLDERS Section 1. Annual Meeting: The annual meeting of the shareholders shall be held at the hour of 10:00 o'clock A.M. on the first Monday in November in each year, beginning with the year 1970, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as conveniently may be. Failure to hold the annual meeting at the designated time shall not work a forfeiture or dissolution of the Corporation. Section 2. Special Meetings: Special meetings of the shareholders may be called by the President, by the Board of Directors, or by the holders of not less than one-fifth of all the outstanding shares of the Corporation entitled to vote at such meeting. Section 3. Place of Meeting: The Board of Directors may designate any place, either within or without the State of Missouri, as the place of meeting for any annual meeting of the shareholders or for any special meeting of the shareholders called by the Board of Directors. The President or the shareholders calling any special meeting may designate any place, either within or without the State of Missouri, as the place for the holding of such meeting. If no such designation is made, the place of the meeting shall be the principal office of the Corporation in the State of Missouri, except as otherwise provided in Section 5 of this article. Section 4. Notice of Meetings: Unless notice be duly waived in writing, or unless a meeting shall be held pursuant to Section 5 of this article, written or printed notice of each meeting of shareholders stating the place, day and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given or delivered not less than ten (10) nor more than thirty (30) days before the date of the meeting, either personally or by mail, by Secretary at the direction of the President, or the Board of Directors, or shareholders calling the meeting, to each shareholder of record entitled to vote at such meeting. Any notice of a shareholders' meeting sent by mail shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid addressed to the shareholder at his address as it appears on the records of the Corporation. Notice may be waived in accordance with Article X hereof. Section 5. Meeting of All Shareholders: If all of the shareholders of record shall meet at any time and place, either within or without the State of Missouri, or if all the shareholders of record consent in writing to the holding of a meeting, such meeting shall be valid, without call or notice, and at such meeting any corporate action may be taken. Section 6. Convening of Meetings: Meetings of the shareholders shall be convened by the President, or in the event of his absence or failure to act, then by the Vice President, if any, or other officer designated to so act by the Board of Directors or by the shareholders calling the meeting. The President, and in his absence, the Vice President, if any, and in the absence of both, then a shareholder elected by a majority of the shareholders present, shall act as Chairman of such meeting. The Secretary of the Corporation shall act as Secretary of all meetings of the shareholders, but in the absence of the Secretary at any meeting of the shareholders, the Chairman may appoint any shareholder to act as Secretary of the meeting. Section 7. Closing of Transfer Books or Fixing of Record Date: The Board of Directors of the Corporation may close its stock transfer books for a period not exceeding thirty days preceding the date of any meeting of shareholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares shall be effective; or, in lieu thereof, may fix in advance a date, not exceeding thirty days preceding the date of any meeting of shareholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any exchange or conversion of or exchange of shares shall be effective, as the record date for the determination of the shareholders entitled to notice of, and to vote at, such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to receive any such allotment of rights, or to exercise such rights, in the event of any change, conversion or exchange of shares, as the case may be. If the Board of Directors shall not have closed the transfer books or set a record date for the determination of the shareholders as hereinabove provided, the date of which notice of the meeting is mailed, or the date such dividend is declared, or other right announced, as the case may be, shall be the record date for such determination of shareholders. Section 8. Voting Lists: At least ten days before each meeting of shareholders, the officer or agent having charge of the transfer book for shares of the corporation shall make a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order with the address of, and the number of shares held by, each shareholder, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof kept in this state, shall be prima facie evidence as to whom are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of shareholders. Section 9. Quorum: A majority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of the shareholders; provided, that if less than a majority of the outstanding shares entitled to vote are represented at said meeting, a majority of the shares so represented may adjourn the meeting, from time to time, without further notice, to a date not longer than ninety days from the date originally set for such meeting. Section 10. Proxies: At all meetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. Section 11. Voting of Shares: Subject to the provisions of Section 13, each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Section 12. Voting of Shares by Certain Holders: Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxy as the By-Laws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such corporation may determine. Shares standing in the name of a deceased person may be voted by his administrator or executor, either in person or by proxy, upon due proof of qualification as such. Shares standing in the name of a guardian, curator, or trustee may be voted by such fiduciary, either in person or by proxy, but not guardian, curator or trustee shall be entitled, as such fiduciary, to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority to do so be contained in an appropriate order of the court by which such receiver was appointed. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledges, and thereafter the pledgee shall be entitled to vote the shares so transferred. Section 13. Cumulative Voting for Directors: In all elections for directors, each shareholder entitled to vote shall have the right to cast as many votes in the aggregate as shall equal the number of shares held by him multiplied by the number of directors to be elected at such election, and each shareholder may cast the whole number of his votes for one candidate or distribute them among two or more candidates as he shall see fit. Section 14. Consent of all Shareholders in Lieu of Meetings: Any action required by "The General and Business Corporation Law of Missouri" to be taken at a meeting of the shareholders, or any action which may be taken at a meeting of shareholders under the provisions of these By-Laws or otherwise, may be taken without a meeting if consents in writing, setting forth the action so taken, shall be signed by all of the shareholders, severally or collectively, entitled to vote with respect to the subject matter thereof. Such consents shall have the same force and effect as a unanimous vote of the shareholders at a meeting duly held, and may be stated as such in any certificate or document required to be filed by law. The Secretary of the Corporation shall file such consents with the minutes of the meetings of the shareholders. ARTICLE III DIRECTORS Section 1. General Powers: The property and business of the Corporation shall be controlled and managed by the Board of Directors. Section 2. Number, Tenure and Qualifications: The number of directors of the Corporation shall be seven (7) and they shall be elected at each annual meeting of the shareholders. Each director shall hold office from the time of his election and qualification until the next succeeding annual meeting of the shareholders and until his successor shall have been duly elected and qualified, or until his death, or until he shall resign, or shall have been removed by the shareholders in the manner hereinafter provided. Section 3. Regular Meetings: The annual meeting of the Board of Directors shall be held without other notice than this By-Law, immediately after, and at the same place as, the annual meeting of the shareholders. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Missouri, for the holding of additional regular meetings without other notice than such resolution. Section 4. Special Meetings: Special meetings of the Board of Directors may be called by or at the request of the President, or any two directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Missouri, as the place for holding any special meeting of the Board of Directors called by them. Section 5. Notice: Notice of any special meeting shall be given at least five days previously thereto by written notice delivered personally or mailed to each director at his business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, unless a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened and so states at said meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 6. Quorum: A majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, provided that if less than a majority of the directors are present at such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. Section 7. Manner of Acting: If all of the directors shall meet at any time and place, either within or without the State of Missouri, without objecting to the call or convening of the meeting, or if all of the directors consent to the holding of a meeting irrespective of any notice, such meeting shall be valid. The act of the majority of the directors present at a meeting of the directors at which a quorum is present shall be the act of the Board of Directors. Section 8. Consent of All Directors in Lieu of Meetings: If all of the directors of the Corporation, severally or collectively, consent in writing to any action required to be taken, or which may be taken, by the Board of Directors, such consents shall have the same force and effect as a unanimous vote of the directors at a meeting duly held, and may be stated as such in any certificate or document required to be filed by law. The Secretary of the Corporation shall file such consents with the minutes of the meetings of the Board of Directors. Section 9. Vacancies: In the case of the death of or resignation or disqualification or one or more of the directors, a majority of the survivors or remaining directors may fill such vacancy or vacancies, by appointment, until the successor or successors are elected at a meeting of the shareholders. A director appointed to fill a vacancy shall serve as such until the next annual meeting of the shareholders, or until he shall die, resign, or be removed by the shareholders in the manner hereinafter provided. Section 10. Removal: Any director of the Corporation may be removed, with or without cause or hearing, at any meeting of the shareholders by the unanimous vote of all of the shareholders of the Corporation entitled to vote at such meeting, or by an instrument in writing filed with the Secretary and executed by all of the shareholders of record on the transfer books of the Corporation on the date of such execution. Said shareholders shall also, at said meeting or in such instrument, appoint a successor director to fill the vacancy of the director so removed, which successor director shall serve until the next annual meeting of the shareholders, or until he shall die, resign, or be removed by the shareholders in the manner herein provided. Section 11. Compensation: Directors as such shall not receive any stated salaries for their services, but by resolution of the Board of Directors, a fixed fee and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board of Directors; provided, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV OFFICERS Section 1. Number: The officers of the Corporation shall consist of a President, a Secretary, a Treasurer and such other officers as may be created by the Board of Directors in accordance with the provisions of this article. The Board of Directors, by resolution, may create the offices of one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers, and such other officers as they deem appropriate, all of whom shall be elected by the Board of Directors. Any two or more offices may be held by the same person, except the offices of President and Vice President and President and Secretary. Section 2. Authority: All officers and agents of the Corporation, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the property and affairs of the Corporation as may be provided in these By-Laws, or, in the absence of such provisions, as may be determined by resolution of the Board of Directors or by law. Section 3. Election and Term of Office: The officers of the Corporation shall be elected annually by the Board of Directors at the annual meeting of the Board of Directors held after each annual meeting of shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may be filled, or new offices created and filled, at any meeting of the Board of Directors. Each officer shall hold office at the pleasure of the Board of Directors and until his successor shall have been duly elected and shall have qualified, or until his death, or until he shall resign, or shall have been removed in the manner hereinafter provided. Section 4. Resignation: Any director or other officer may resign his office at any time, such resignation to be made in writing and to take effect from the time of its receipt by the Corporation unless some other time be fixed in the resignation, and then to take effect from such other time. The acceptance of a resignation shall not be required to make it effective. Section 5. Removal: Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause or hearing at any time whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contractual rights, if any, of the person so removed. Section 6. Vacancies: A vacancy in any office because of death, resignation, removal, disqualification or otherwise may be filled by the Board of Directors, by appointment, for the unexpired portion of the term. Section 7. The President: The President shall be the principal executive officer of the Corporation and shall in general supervise and control all of the business and affairs of the Corporation. He shall preside at all meetings of the shareholders and the Board of Directors. He may sign, with the Secretary or Treasurer or any other proper officer authorized by the Board of Directors or these By-Laws, all certificates for shares of the Corporation, any deeds, mortgages, bonds, contracts, and other instruments, including those, the signature of which may be expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the Corporation, or which may be permitted by law to be otherwise signed or executed; and in general shall perform all duties customarily incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. Section 8. The Vice President: In the absence of the President or in the event of his inability or refusal to act, the Vice President, if any, shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. The Vice President, if any, may sign, with the Secretary or an Assistant Secretary, or with the Treasurer or an Assistant Treasurer, certificates for shares of the Corporation; and shall perform such other duties as from time to time may be assigned to him by the President or by the Board of Directors. Section 9. The Secretary: The Secretary shall (a) keep the minutes of the shareholders' and the Board of Directors' meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation and see that the seal of the Corporation is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-Laws; (d) keep a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) have general charge of the stock transfer books of the Corporation; and (f) in general perform all the duties customarily incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. The Secretary may sign, with the President or Vice President, if any, certificates for shares of the Corporation, the issue of which shall have been authorized by resolution of the Board of Directors or by these By-Laws. Section 10. The Treasurer: If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and form and with such surety or sureties as the Board of Directors shall determine. He shall (a) have charge and custody of, and be responsible for, all funds and securities of the Corporation; (b) receive and give receipts for moneys, due and payable to the Corporation from any source whatsoever; (c) deposit all moneys of the Corporation in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Article V of these By-Laws; and (d) in general perform all the duties customarily incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. The Treasurer may sign, with the President or Vice President, if any, certificates for shares of the Corporation, the issue of which shall have been authorized by resolution of the Board of Directors or by these By-Laws. Section 11. Assistant Treasurers and Assistant Secretaries: The Assistant Treasurers, if any, shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and forms and with such sureties as the Board of Directors shall determine. Assistant Secretaries, if any, and Assistant Treasurers, as thereunto authorized by the Board of Directors, may sign with the President, or Vice President, if any, certificates for shares of the Corporation, the issue of which shall have been authorized by resolution of the Board of Directors or by these By-Laws. The Assistant Treasurers and Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Treasurer or the Secretary, respectively, or by the President or the Board of Directors. In the absence of, or inability to act of the Treasurer or Secretary, the Assistant Treasurer or Assistant Secretary, respectively, may perform the duties of the Treasurer or Secretary, as the case may be. Section 12. Compensation: The salaries and other compensation of the President, Vice President, if any, Secretary and Treasurer shall be fixed and changed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. ARTICLE V CONTRACTS, LOANS, CHECKS AND DEPOSITS Section 1. Contracts: The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. Section 2. Loans: No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances. Section 3. Checks, Drafts, etc.: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors. Section 4. Deposits: All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may select. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 1. Certificates for Shares: Certificates representing shares of the Corporation shall be in such forms as may be signed by the President or Vice President, if any, and by the Secretary or Treasurer or an Assistant Secretary or Assistant Treasurer, and shall be sealed with the seal of the Corporation. All certificates for shares shall be consecutively numbered. The name of the person owning the shares represented thereby with the number of shares and date of issue shall be entered on the books of the Corporation. Section 2. Transfer of Shares: Transfers of shares of the Corporation shall be made only on the books of the Corporation by due assignment by the registered holder thereof or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation and on surrender for cancellation of the certificate for such shares, together with such other requirements as the Board of Directors may deem necessary to constitute due delivery. All certificates surrendered to the Corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefor upon such terms and indemnity to the Corporation as the Board of Directors may prescribe. The person in whose name shares stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. ARTICLE VII FISCAL YEAR The fiscal year of the Corporation shall be on a fiscal year basis, commencing on the first day of September and ending on the thirty-first day of August in each year. ARTICLE VIII DIVIDENDS The Board of Directors may, from time to time, declare and the Corporation may pay, dividends on the outstanding shares in the manner and upon the terms and conditions provided by law and the Articles of Incorporation. ARTICLE IX SEAL The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and the word "Seal". ARTICLE X WAIVER OF NOTICE Whenever any notice whatever is required to be given under the provisions of these By-Laws or under the provisions of the Articles of Incorporation or under the provisions of The General and Business Corporation Law of Missouri, waiver thereof in writing, signed by the person or persons entitled to such notice, or by telegram, whether before or after the time stated therein, or by attendance at the meeting (except where such attendance is expressly stated to be for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened) shall be deemed equivalent to the giving of such notice. ARTICLE XI EXONERATION OF DIRECTORS FROM PERSONAL lIABILITY AND REIMBURSEMENT No director shall be personally liable to this Corporation, its stockholders, creditors or other interested persons for any act or failure to act in the performance of his or her duties or for any loss to the Corporation or to any such persons, except through actual fraud or willful misconduct on the part of the Director to be charged. Any and all of the directors, officers, former directors and officers of this Corporation or any person who may have served at its request as a director or officer of another corporation, in which it owns shares of capital stock or of which it is a creditor, and their respective legal representatives, shall be and they are hereby indemnified and held harmless by the Corporation against any and all liabilities, expenses, losses, claims, fees and costs which may be sustained or incurred by them by reason of being or having been directors or officers, or a director or officer of this Corporation, or of such other corporation. Such indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of shareholders, or otherwise. ARTICLE XII AMENDMENTS These By-Laws, or any Article, Section or Part thereof, may be repealed, altered, revised, added to, or amended, or new By-Laws may be adopted at any annual, regular or special meeting of the Board of Directors by an affirmative vote of a majority of all of the Directors. Adopted on ______________________, 1970. -------------------------------------- President ATTEST: - ------------------------------------ Secretary EX-3.41 40 manx3-41.txt ARTICLES OF MANITOWOC CRANE & SHOVEL Exhibit 3.41 ARTICLES OF INCORPORATION OF MANITOWOC CRANE AND SHOVEL SALES CORP. -------------------------------------- The undersigned, desiring to form a corporation for profit under the general laws of Ohio, does hereby certify: ARTICLE I - NAME ---------------- The name of said corporation shall be Manitowoc Crane and Shovel Sales Corp. ARTICLE II - PRINCIPAL OFFICE ----------------------------- The place in the State of Ohio where the principal office is to be located is 300 Leader Building, Cleveland, Ohio 44114, in Cuyahoga County. ARTICLE III - PURPOSE --------------------- The purpose for which the corporation is formed is: (a) To engage in the industrial sales and service of heavy equipment and all related activities in conjunction therewith and to do all things necessary and appurtenant to such business; (b) To engage in any or all other lawful acts or activities for which corporations may be formed under Section 1701.01 to 1701.98, inclusive, of the Ohio Revised Code. ARTICLE IV - OUTSTANDING SHARES ------------------------------- The maximum number of shares which the corporation is authorized to have outstanding is 500 shares, all of which shall be common shares without par value. ARTICLE V - CAPITAL ------------------- The amount of the capital with which the corporation will begin business will be not less than Five Hundred Dollars ($500.00). EX-3.42 41 manx3-42.txt ARTICLES OF KMT REFRIGERATION, INC. Exhibit 3.42 ARTICLES OF INCORPORATION OF KMT REFRIGERATION, INC. The undersigned incorporator, acting as incorporator of a corporation under the Wisconsin Business Corporation Law Chapter 180 of the Wisconsin Statutes (the "WBCL"), adopts the following Articles of Incorporation for such corporation: ARTICLE I Name The name of the corporation is KMT Refrigeration, Inc. ARTICLE II Purposes The purposes for which the corporation is organized are to engage in any lawful activity within the purposes for which a corporation may be organized under the WBCL. ARTICLE III Capital Stock The aggregate number of shares which the corporation shall have authority to issue is Nine Thousand (9,000) shares, consisting of one class only, designated as "Common Stock," of the par value of One Dollar ($1.00) per share. ARTICLE IV Preemptive Rights No holder of any stock of the corporation shall have any preemptive right to purchase, subscribe for, or otherwise acquire any shares of stock of the corporation of any class now or hereafter authorized, or any securities exchangeable for or convertible into such shares. ARTICLE V Registered Office and Agent The address of the initial registered office of the corporation is 44 East Mifflin Street, Madison, Wisconsin 53703 and the name of its initial registered agent at such address is CT Corporation System. ARTICLE VI Incorporator The name and address of the incorporator is Thomas A. Simonis, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202. EX-3.43 42 manx3-43.txt BYLAWS OF KMT REFRIGERATION, INC. Exhibit 3.43 BYLAWS OF KMT REFRIGERATION, INC. ADOPTED NOVEMBER 11, 1996 TABLE OF CONTENTS ARTICLE I. OFFICES; RECORDS 1.01. Principal and Business Offices........................................1 1.02. Registered Office and Registered Agent................................1 1.03. Corporate Records.....................................................1 ARTICLE II. SHAREHOLDERs 2.01. Annual Meetings.......................................................1 2.02. Special Meetings......................................................2 2.03. Place of Meeting......................................................2 2.04. Notices to Shareholders...............................................2 (a) Required Notice..............................................2 (b) Adjourned Meeting............................................2 (c) Waiver of Notice.............................................3 (d) Contents of Notice...........................................3 (e) Fundamental Transactions.....................................3 2.05. Fixing of Record Date.................................................3 2.06. Shareholder List......................................................4 2.07. Quorum and Voting Requirements........................................4 2.08. Conduct of Meetings...................................................4 2.09. Proxies...............................................................5 2.10. Voting of Shares......................................................5 ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number.............................................5 3.02. Election, Removal, Tenure and Qualifications..........................5 3.03. Regular Meetings......................................................6 3.04. Special Meetings......................................................6 3.05. Meetings by Telephone or Other Communication Technology...............6 3.06. Notice of Meetings....................................................7 3.07. Quorum................................................................7 3.08. Manner of Acting......................................................7 3.09. Conduct of Meetings...................................................7 3.10. Vacancies.............................................................7 3.11. Compensation..........................................................8 3.12. Presumption of Assent.................................................8 3.13. Committees............................................................8 ARTICLE IV. OFFICERS 4.01. Appointment...........................................................9 -i- 4.02. Resignation and Removal...............................................9 4.03. Vacancies.............................................................9 4.04. Chairperson of the Board..............................................9 4.05. President.............................................................9 4.06. Vice Presidents......................................................10 4.07. Secretary............................................................10 4.08. Treasurer............................................................10 4.09. Assistants and Acting Officers.......................................10 4.10. Salaries.............................................................11 ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER 5.01. Certificates for Shares..............................................11 5.02. Signature by Former Officers.........................................11 5.03. Transfer of Shares...................................................11 5.04. Restrictions on Transfer.............................................12 5.05. Lost, Destroyed or Stolen Certificates...............................12 5.06. Consideration for Shares.............................................12 5.07. Stock Regulations....................................................12 ARTICLE VI. WAIVER OF NOTICE 6.01. Shareholder Written Waiver...........................................12 6.02. Shareholder Waiver by Attendance.....................................13 6.03. Director Written Waiver..............................................13 6.04. Director Waiver by Attendance........................................13 ARTICLE VII. ACTION WITHOUT MEETINGS 7.01. Shareholder Action Without Meeting...................................13 7.02. Director Action Without Meeting......................................13 ARTICLE VIII. INDEMNIFICATION 8.01. Indemnification for Successful Defense...............................14 8.02. Other Indemnification................................................14 8.03. Written Request......................................................14 8.04. Nonduplication.......................................................14 8.05. Determination of Right to Indemnification............................15 8.06. Advance of Expenses..................................................16 8.07. Nonexclusivity.......................................................16 8.08. Court-Ordered Indemnification........................................17 8.09. Indemnification and Allowance of Expenses of Employes and Agents.....17 8.10. Insurance............................................................18 8.11. Securities Law Claims................................................18 8.12. Liberal Construction.................................................18 -ii- 8.13. Definitions Applicable to this Article...............................18 ARTICLE IX. SEAL ARTICLE X. AMENDMENTS 10.01. By Shareholders......................................................19 10.02. By Directors.........................................................20 10.03. Implied Amendments...................................................20 ARTICLE XI. STOCK TRANSFER RESTRICTIONS -iii- ARTICLE I. OFFICES; RECORDS 1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office and Registered Agent. The registered office of the corporation required by the Wisconsin Business Corporation law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin. The address of the registered office may be changed from time to time by any officer or by the registered agent. The office of the registered agent of the corporation shall be identical to such registered office. 1.03. Corporate Records. The following documents and records shall be kept at the corporation's principal office or at such other reasonable location as may be specified by the corporation: (a) Minutes of shareholders' and Board of Directors' meetings and any written notices thereof. (b) Records of actions taken by the shareholders or directors without a meeting. (c) Records of actions taken by committees of the Board of Directors. (d) Accounting records. (e) Records of its shareholders. (f) Current Bylaws. (g) Written waivers of notice by shareholders or directors (if any). (h) Written consents by shareholders or directors for actions without a meeting (if any). (i) Voting trust agreements (if any). (j) Stock transfer agreements to which the corporation is a party or of which it has notice (if any). ARTICLE II. SHAREHOLDERS 2.01. Annual Meetings. The annual meeting of the shareholders shall be held on the third Tuesday of October in each year at 2:00 p.m., or at such other time and date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting is a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors is not held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a meeting of the shareholders as soon thereafter as may be convenient. 2.02. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Chairperson of the Board, if there is one, the President or the Board of Directors. If and as required by the Wisconsin Business Corporation Law, a special meeting shall be called upon written demand describing one or more purposes for which it is to be held by holders of shares with at least 10% of the votes entitled to be cast on any issue proposed to be considered at the meeting. The purpose or purposes of any special meeting shall be described in the notice required by Section 2.04 of these Bylaws. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or any special meeting. If no designation is made, the place of meeting shall be the principal office of the corporation but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notices to Shareholders.(a) Required Notice. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than five (5) days nor more than sixty (60) days before the date of the meeting (unless a different time is provided by law or the Articles of Incorporation), by or at the direction of the Chairperson of the Board, if there is one, the President or the Secretary, to each shareholder entitled to vote at such meeting or, for the fundamental transactions described in subsections (e)(1) to (4) below (for which the Wisconsin Business Corporation Law requires that notice be given to shareholders not entitled to vote), to all shareholders. If mailed, such notice is effective when deposited in the United States mail, and shall be addressed to the shareholder's address shown in the current record of shareholders of the corporation, with postage thereon prepaid. At least twenty (20) days' notice shall be provided if the purpose, or one of the purposes, of the meeting is to consider a plan of merger or share exchange for which shareholder approval is required by law, or the sale, lease, exchange or other disposition of all or substantially all of the corporation's property, with or without good will, otherwise than in the usual and regular course of business. (b) Adjourned Meeting. Except as provided in the next sentence, if any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be fixed, then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.04, to those persons who are shareholders as of the new record date. -2- (c) Waiver of Notice. A shareholder may waive notice in accordance with Article VI of these Bylaws. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called, and only business within the purpose described in the meeting notice may be conducted at a special shareholders' meeting. Except as otherwise provided in subsection (e) of this Section 2.04, in the Articles of Incorporation, or in the Wisconsin Business Corporation Law, the notice of an annual shareholders' meeting need not include a description of the purpose or purposes for which the meeting is called. (e) Fundamental Transactions. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the Articles of Incorporation (including any restated articles); (2) a plan of merger or share exchange for which shareholder approval is required by law; (3) the sale, lease, exchange or other disposition of all or substantially all of the corporation's property, with or without good will, otherwise than in the usual and regular course of business; (4) the dissolution of the corporation; or (5) the removal of a director, the notice must so state and in cases (1), (2) and (3) above must be accompanied by, respectively, a copy or summary of the: (1) proposed articles of amendment or a copy of the restated articles that identifies any amendment or other change; (2) proposed plan of merger or share exchange; or (3) proposed transaction for disposition of all or substantially all of the corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders and beneficial shareholders are or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Sections 180.1301 to 180.1331 of the Wisconsin Business Corporation Law. 2.05. Fixing of Record Date. The Board of Directors may fix in advance a date as the record date for one or more voting groups for any determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote, or to take any other action, such date in any case to be not more than seventy (70) days prior to the meeting or action requiring such determination of shareholders, and may fix the record date for determining shareholders entitled to a share dividend or distribution. If no record date is fixed for the determination of shareholders entitled to demand a shareholder meeting, to notice of or to vote at a meeting of shareholders, or to consent to action without a meeting, (a) the close of business on the day before the corporation receives the first written demand for a shareholder meeting, (b) the close of business on the day before the first notice of the meeting is mailed or otherwise delivered to shareholders, or (c) the close of business on the day before the first written consent to shareholder action without a meeting is received by the corporation, as the case may be, shall be the record date for the determination of shareholders. If no record date is fixed for the determination of shareholders entitled to receive a share dividend or distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation's shares), the close of business on the day on which the resolutions of the Board of Directors is adopted declaring the dividend or distribution shall be the record date. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof unless -3- the Board of Directors fixes a new record date and except as otherwise required by law. A new record date must be set if a meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 2.06. Shareholder List. The Officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete record of the shareholders entitled to notice of such meeting, arranged by class or series of shares and showing the address of and the number of shares held by each shareholder. The shareholder list shall be available at the meeting and may be inspected by any shareholder or his or her agent or attorney at any time during the meeting or any adjournment. Any shareholder or his or her agent or attorney may inspect the shareholder list beginning two (2) business days after the notice of the meeting is given and continuing to the date of the meeting, at the corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held and, subject to Section 180.1602(2)(b) 3 to 5 of the Wisconsin Business Corporation Law, may copy the list, during regular business hours and at his or her expense, during the period that it is available for inspection hereunder. The original stock transfer books and nominee certificates on file with the corporation (if any) shall be prima facie evidence as to who are the shareholders entitled to inspect the shareholder list or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum and Voting Requirements. Except as otherwise provided in the Articles of Incorporation or in the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast by shares entitled to vote as a separate voting group on a matter, represented in person or by proxy, shall constitute a quorum of that voting group for action on that matter at a meeting of shareholders. If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action unless a greater number of affirmative votes is required by the Wisconsin Business Corporation Law or the Articles of Incorporation. If the Articles of Incorporation or the Wisconsin Business Corporation Law provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one (1) voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, other than for the purpose of objecting to holding the meeting or transacting business at the meeting, it is considered present for purposes of determining whether a quorum exists for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that meeting. 2.08. Conduct of Meetings. The Chairperson of the Board, or if there is none, or in his or her absence, the President, and in the President's absence, a Vice President, in the order provided under Section 4.06 of these Bylaws, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairperson of the meeting, and the Secretary shall act as secretary of all meetings of the -4- shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote in person or by proxy appointed in writing by the shareholder or by his or her duly authorized attorney-in-fact. All proxy appointment forms shall be filed with the Secretary or other officer or agent of the corporation authorized to tabulate votes before or at the time of the meeting. Unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest, a proxy appointment may be revoked at any time. The presence of a shareholder who has filed a proxy appointment shall not of itself constitute a revocation. No proxy appointment shall be valid after eleven months from the date of its execution, unless otherwise expressly provided in the appointment form. The Board of Directors shall have the power and authority to make rules that are not inconsistent with the Wisconsin Business Corporation Law as to the validity and sufficiency of proxy appointments. 2.10. Voting of Shares. Each outstanding share shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares are enlarged, limited or denied by the Articles of Incorporation or the Wisconsin Business Corporation Law. Shares owned directly or indirectly by another corporation are not entitled to vote if this corporation owns, directly or indirectly, sufficient shares to elect a majority of the directors of such other corporation. However, the prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its Board of Directors. The number of directors of the corporation shall be three (3). The number of directors may be increased or decreased from time to time by amendment to this Section adopted by the shareholders or the Board of Directors, but no decrease shall have the effect of shortening the term of an incumbent director. 3.02. Election, Removal, Tenure and Qualifications. Unless action is taken without a meeting under Section 7.01 of these Bylaws, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a shareholders meeting at which a quorum is present; i.e., the individuals with the largest number of votes in favor of their election are elected as directors up to the maximum number of directors to be chosen in the election. Votes against a candidate are not given legal effect and are not counted as votes cast in an election of directors. In the event two (2) or more persons tie for the last vacancy to be filled, a run-off vote shall be taken from among the candidates receiving the tie vote. Each director shall hold office until the next annual meeting of shareholders and until the director's -5- successor shall have been elected or there is a decrease in the number of directors, or until his or her prior death, resignation or removal. If cumulative voting for directors is not authorized by the Articles of Incorporation, any director or directors may be removed from office by the shareholders if the number of votes cast to remove the director exceeds the number cast not to remove him or her, taken at a meeting of shareholders called for that purpose (unless action is taken without a meeting under Section 7.01 of these Bylaws), provided that the meeting notice states that the purpose, or one of the purposes, of the meeting is removal of the director. The removal may be made with or without cause unless the Articles of Incorporation or these Bylaws provide that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove that director. A director may resign at any time by delivering a written resignation to the Board of Directors, to the Chairperson of the Board (if there is one), or to the corporation through the Secretary or otherwise. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held, without other notice than this Bylaw, immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors and any committee may provide, by resolution, the time and place, either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairperson of the Board, if there is one, the President or any two (2) directors. Special meetings of any committee may be called by or at the request of the foregoing persons or the chairperson of the committee. The persons calling any special meeting of the Board of Directors or committee may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting called by them, and if no other place is fixed the place of meeting shall be the principal office the corporation in the State of Wisconsin. 3.05. Meetings by Telephone or Other Communication Technology. (a) Any or all directors may participate in a regular or special meeting or in a committee meeting of the Board of Directors by, or conduct the meeting through the use of, telephone or any other means of communication by which either: (i) all participating directors may simultaneously hear each other during the meeting or (ii) all communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors. (b) If a meeting will be conducted through the use of any means described in paragraph (a), all participating directors shall be informed that a meeting is taking place at which official business may be transacted. A director participating in a meeting by any means described in paragraph (a) is deemed to be present in person at the meeting. -6- 3.06. Notice of Meetings. Except as otherwise provided in the Articles of Incorporation or the Wisconsin Business Corporation Law, notice of the date, time and place of any special meeting of the Board of Directors and of any special meeting of a committee of the Board shall be given orally or in writing to each director or committee member at least 48 hours prior to the meeting, except that notice by mail shall be given at least 72 hours prior to the meeting. The notice need not describe the purpose of the meeting. Notice may be communicated in person, by telephone, telegraph or facsimile, or by mail or private carrier. Oral notice is effective when communicated. Written notice is effective as follows: If delivered in person, when received; if given by mail, when deposited, postage prepaid, in the United States mail addressed to the director at his or her business or home address (or such other address as the director may have designated in writing filed with the Secretary); if given by facsimile, at the time transmitted to a facsimile number at any address designated above; and if given by telegraph, when delivered to the telegraph company. 3.07. Quorum. Except as otherwise provided by the Wisconsin Business Corporation Law, a majority of the number of directors as provided in Section 3.01 shall constitute a quorum of the Board of Directors. Except as otherwise provided by the Wisconsin Business Corporation Law, a majority of the number of directors appointed to serve on a committee shall constitute a quorum of the committee. 3.08. Manner of Acting. Except as otherwise provided by the Wisconsin Business Corporation Law or the Articles of Incorporation, the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors or any committee thereof. 3.09. Conduct of Meetings. The Chairperson of the Board, or if there is none, or in his or her absence, the President, and in the President's absence, a Vice President in the order provided under Section 4.06 of these Bylaws, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall chair the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any assistant secretary or any director or other person present to act as secretary of the meeting. 3.10. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled by the shareholders or the Board of Directors. If the directors remaining in office constitute fewer than a quorum of the Board, the directors may fill a vacancy by the affirmative vote of a majority of all directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors. A vacancy that will occur at a specific later date (because of a resignation effective at a later date or otherwise) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs. -7- 3.11. Compensation. The Board of Directors, irrespective of any personal interest of any of its members, may fix the compensation of directors. 3.12. Presumption of Assent. A director who is present and is announced as present at a meeting of the Board of Directors or a committee thereof at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless (i) the director objects at the beginning of the meeting or promptly upon his or her arrival to holding the meeting or transacting business at the meeting, or (ii) the director's dissent or abstention from the action taken is entered in the minutes of the meeting, or (iii) the director delivers his or her written dissent or abstention to the presiding officer of the meeting before the adjournment thereof or to the corporation immediately after the adjournment of the meeting, or (iv) the director dissents or abstains from the action taken, minutes of the meeting are prepared and fail to show the director's dissent or abstention from the action taken, and the director delivers to the corporation a written notice of that omission from the minutes promptly after receiving a copy of the minutes. Such right to dissent or abstain shall not apply to a director who voted in favor of such action. 3.13. Committees. Unless the Articles of Incorporation otherwise provide, the Board of Directors, by resolution adopted by the affirmative vote of a majority of all the directors then in office, may create one (1) or more committees, each committee to consist of two (2) or more directors as members, which to the extent provided in the resolution as initially adopted, and as thereafter supplemented or amended by further resolution adopted by a like vote, may exercise the authority of the Board of Directors, except that no committee may: (a) authorize distributions; (b) approve or propose to shareholders action that the Wisconsin Business Corporation Law requires be approved by shareholders; (c) fill vacancies on the Board of Directors or any of its committees, except that the Board of Directors may provide by resolution that any vacancies on a committee shall be filled by the affirmative vote of a majority of the remaining committee members; (d) amend the Articles of Incorporation; (e) adopt, amend or repeal Bylaws; (f) approve a plan of merger not requiring shareholder approval; (g) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors or (h) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares, except within limits prescribed by the Board of Directors. All members of the Board of Directors who are not members of a given committee shall be alternate members of such committee and may take the place of any absent member or members at any meeting of such committee, upon request by the Chairperson of the Board, if there is one, the President or upon request by the chairperson of such meeting. Each such committee shall fix its own rules (consistent with the Wisconsin Business Corporation Law, the Articles of Incorporation and these Bylaws) governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. Unless otherwise provided by the Board of Directors in creating a committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of authority. The creation of a committee, delegation of authority to a committee or action by a committee does not relieve the Board of Directors or any of its members of any responsibility imposed on the Board of Directors or its members by law. -8- ARTICLE IV. OFFICERS 4.01. Appointment. The principal officers shall include a President, one or more Vice Presidents (the number and designations to be determined by the Board of Directors), a Secretary and such other officers, if any, as may be deemed necessary by the Board of Directors, each of whom shall be appointed by the Board of Directors. Any two or more offices may be held by the same person. 4.02. Resignation and Removal. An officer shall hold office until he or she resigns, dies, is removed hereunder, or a different person is appointed to the office. An officer may resign at any time by delivering an appropriate written notice to the corporation. The resignation is effective when the notice is delivered, unless the notice specifies a later effective date and the corporation accepts the later effective date. Any officer may be removed by the Board of Directors with or without cause and notwithstanding the contract rights, if any, of the person removed. Except as provided in the preceding sentence, the resignation or removal is subject to any remedies provided by any contract between the officer and the corporation or otherwise provided by law. Appointment shall not of itself create contract rights. 4.03. Vacancies. A vacancy in any office because of death, resignation, removal or otherwise, shall be filled by the Board of Directors. If a resignation is effective at a later date, the Board of Directors may fill the vacancy before the effective date if the Board of Directors provides that the successor may not take office until the effective date. 4.04. Chairperson of the Board. The Board of Directors may at its discretion appoint a Chairperson of the Board. The Chairperson of the Board, if there is one, shall preside at all meetings of the shareholders and Board of Directors, and shall carry out such other duties as directed by the Board of Directors. 4.05. President. The President shall be the principal executive officer and, subject to the control and direction of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He or she shall, in the absence of the Chairperson of the Board (if one is appointed), preside at all meetings of the shareholders and of the Board of Directors. The President shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employes of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employes shall hold office at the discretion of the President. The President shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of Directors; and, except as otherwise provided by law or directed by the Board of Directors, the President may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his or her place and stead. In -9- general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. 4.06. Vice Presidents. In the absence of the President, or in the event of the President's death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, a Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the President or the Board of Directors. The execution of any instrument of the corporation by any Vice President shall be conclusive evidence, as to third parties, of the Vice President's authority to act in the stead of the President. 4.07. Secretary. The Secretary shall: (a) keep (or cause to be kept) regular minutes of all meetings of the shareholders, the Board of Directors and any committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents which are authorized to be executed on behalf of the corporation under its seal; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 4.08. Treasurer. If the Board of Directors appoints a Treasurer, the Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected by the corporation; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 4.09. Assistants and Acting Officers. The Board of Directors and the President shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in the officer's stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors or President -10- shall have the power to perform all the duties of the office to which that person is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors or the President. 4.10. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the corporation. ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER 5.01. Certificates for Shares. All shares of this corporation shall be represented by certificates. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. At a minimum, a share certificate shall state on its face the name of the corporation and that it is organized under the laws of the State of Wisconsin, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, that the certificate represents. If the corporation is authorized to issue different classes of shares or different series within a class, the front or back of the certificate must contain either (a) a summary of the designations, relative rights, preferences and limitations applicable to each class, and the variations in the rights, preferences and limitations determined for each series and the authority of the Board of Directors to determine variations for future series, or (b) a conspicuous statement that the corporation will furnish the shareholder the information described in clause (a) on request, in writing and without charge. Such certificates shall be signed, either manually or in facsimile, by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 5.05. 5.02. Signature by Former Officers. If an officer or assistant officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, has ceased to be such officer or assistant officer before such certificate is issued, the certificate may be issued by the corporation with the same effect as if that person were still an officer or assistant officer at the date of its issue. 5.03. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer, and unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the shareholder, the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to have and exercise all the rights and power of an owner. The corporation may require reasonable assurance that all -11- transfer endorsements are genuine and effective and in compliance with all regulations prescribed by or under the authority of the Board of Directors. 5.04. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction upon the transfer of such shares imposed by the corporation or imposed by any agreement of which the corporation has written notice. 5.05. Lost, Destroyed or Stolen Certificates. Where the owner claims that his or her certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) if required by the corporation, files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors. 5.06. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time and determined to be adequate by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration may consist of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services to be performed, or other securities of the corporation. When the corporation receives the consideration for which the Board of Directors authorized the issuance of shares, such shares shall be deemed to be fully paid and nonassessable by the corporation. 5.07. Stock Regulations. The Board of Directors shall have the power and authority to make all such rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more registrars. ARTICLE VI. WAIVER OF NOTICE 6.01. Shareholder Written Waiver. A shareholder may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or these Bylaws before or after the date and time stated in the notice. The waiver shall be in writing and signed by the shareholder entitled to the notice, shall contain the same information that would have been required in the notice under the Wisconsin Business Corporation Law except that the time and place of meeting need not be stated, and shall be delivered to the corporation for inclusion in the corporate records. -12- 6.02. Shareholder Waiver by Attendance. A shareholder's attendance at a meeting, in person or by proxy, waives objection to both of the following: (a) Lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting. (b) Consideration of a particular matter at the meeting that is not within the purpose described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 6.03. Director Written Waiver. A director may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or the Bylaws before or after the date and time stated in the notice. The waiver shall be in writing, signed by the director entitled to the notice and retained by the corporation. 6.04. Director Waiver by Attendance. A director's attendance at or participation in a meeting of the Board of Directors or any committee thereof waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly upon his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. ARTICLE VII. ACTION WITHOUT MEETINGS 7.01. Shareholder Action Without Meeting. Action required or permitted by the Wisconsin Business Corporation Law to be taken at a shareholders' meeting may be taken without a meeting (a) by all shareholders entitled to vote on the action, or (b) if the Articles of Incorporation so provide (and except with respect to an election of directors for which shareholders may vote cumulatively) by shareholders who would be entitled to vote at a meeting shares with voting power sufficient to cast not less than the minimum number (or, in the case of voting by voting groups, the minimum numbers) of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the shareholders consenting thereto and delivered to the corporation for inclusion in its corporate records. A consent hereunder has the effect of a meeting vote and may be described as such in any document. The Wisconsin Business Corporation Law requires that notice of the action be given to certain shareholders and specifies the effective date thereof and the record date in respect thereto. 7.02. Director Action Without Meeting. Unless the Articles of Incorporation provide otherwise, action required or permitted by the Wisconsin Business Corporation law to be taken at a Board of Directors meeting or committee meeting may be taken without a meeting if the action is taken by all members of the Board or committee. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and retained by the corporation. Action taken hereunder is effective when the last director signs the consent, unless the consent specifies a different effective date. A consent signed -13- hereunder has the effect of a unanimous vote taken at a meeting at which all directors or committee members were present, and may be described as such in any document. ARTICLE VIII. INDEMNIFICATION 8.01. Indemnification for Successful Defense. Within twenty (20) days after receipt of a written request pursuant to Section 8.03, the corporation shall indemnify a director or officer, to the extent he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation. 8.02. Other Indemnification. (a) In cases not included under Section 8.01, the corporation shall indemnify a director or officer against all liabilities and expenses incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the corporation, unless liability was incurred because the director or officer breached or failed to perform a duty he or she owes to the corporation and the breach or failure to perform constitutes any of the following: (1) A willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest. (2) A violation of criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful. (3) A transaction from which the director or officer derived an improper personal profit. (4) Willful misconduct. (b) Determination of whether indemnification is required under this Section shall be made pursuant to Section 8.05. (c) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director or officer is not required under this Section. 8.03. Written Request. A director or officer who seeks indemnification under Sections 8.01 or 8.02 shall make a written request to the corporation. 8.04. Nonduplication. The corporation shall not indemnify a director or officer under Sections 8.01 or 8.02 if the director or officer has previously received -14- indemnification or allowance of expenses from any person, including the corporation, in connection with the same proceeding. However, the director or officer has no duty to look to any other person for indemnification. 8.05. Determination of Right to Indemnification. (a) Unless otherwise provided by the Articles of Incorporation or by written agreement between the director or officer and the corporation, the director or officer seeking indemnification under Section 8.02 shall select one of the following means for determining his or her right to indemnification: (1) By a majority vote of a quorum of the Board of Directors consisting of directors not at the time parties to the same or related proceedings. If a quorum of disinterested directors cannot be obtained, by majority vote of a committee duly appointed by the Board of Directors and consisting solely of two (2) or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee. (2) By independent legal counsel selected by a quorum of the Board of Directors or its committee in the manner prescribed in sub. (1) or, if unable to obtain such a quorum or committee, by a majority vote of the full Board of Directors, including directors who are parties to the same or related proceedings. (3) By a panel of three (3) arbitrators consisting of one arbitrator selected by those directors entitled under sub. (2) to select independent legal counsel, one arbitrator selected by the director or officer seeking indemnification and one arbitrator selected by the two (2) arbitrators previously selected. (4) By an affirmative vote of shares represented at a meeting of shareholders at which a quorum of the voting group entitled to vote thereon is present. Shares owned by, or voted under the control of, persons who are at the time parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination. (5) By a court under Section 8.08. (6) By any other method provided for in any additional right to indemnification permitted under Section 8.07. (b) In any determination under (a), the burden of proof is on the corporation to prove by clear and convincing evidence that indemnification under Section 8.02 should not be allowed. -15- (c) A written determination as to a director's or officer's indemnification under Section 8.02 shall be submitted to both the corporation and the director or officer within 60 days of the selection made under (a). (d) If it is determined that indemnification is required under Section 8.02, the corporation shall pay all liabilities and expenses not prohibited by Section 8.04 within ten (10) days after receipt of the written determination under (c). The corporation shall also pay all expenses incurred by the director or officer in the determination process under (a). 8.06. Advance of Expenses. Within ten (10) days after receipt of a written request by a director or officer who is a party to a proceeding, the corporation shall pay or reimburse his or her reasonable expenses as incurred if the director or officer provides the corporation with all of the following: (1) A written affirmation of his or her good faith belief that he or she has not breached or failed to perform his or her duties to the corporation. (2) A written undertaking, executed personally or on his or her behalf, to repay the allowance to the extent that it is ultimately determined under Section 8.05 that indemnification under Section 8.02 is not required and that indemnification is not ordered by a court under Section 8.08(b)(2). The undertaking under this subsection shall be an unlimited general obligation of the director or officer and may be accepted without reference to his or her ability to repay the allowance. The undertaking may be secured or unsecured. 8.07. Nonexclusivity. (a) Except as provided in (b), Sections 8.01, 80.2 and 8.06 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following: (1) The Articles of Incorporation. (2) A written agreement between the director or officer and the corporation. (3) A resolution of the Board of Directors. (4) A resolution, after notice, adopted by a majority vote of all of the corporation's voting shares then issued and outstanding. (b) Regardless of the existence of an additional right under (a), the corporation shall not indemnify a director or officer, or permit a director or officer to retain any allowance of expenses unless it is determined by or on behalf of the corporation that the director or officer did not breach or fail to perform a duty he or she -16- owes to the corporation which constitutes conduct under Section 8.02(a)(1), (2), (3) or (4). A director or officer who is a party to the same or related proceeding for which indemnification or an allowance of expenses is sought may not participate in a determination under this subsection. (c) Sections 8.01 to 8.13 do not affect the corporation's power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances. (1) As a witness in a proceeding to which he or she is not a party. (2) As a plaintiff or petitioner in a proceeding because he or she is or was an employe, agent, director or officer of the corporation. 8.08. Court-Ordered Indemnification. (a) Except as provided otherwise by written agreement between the director or officer and the corporation, a director or officer who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. Application shall be made for an initial determination by the court under Section 8.05(a)(5) or for review by the court of an adverse determination under Section 8.05(a)(1), (2), (3), (4) or (6). After receipt of an application, the court shall give any notice it considers necessary. (b) The court shall order indemnification if it determines any of the following: (1) That the director or officer is entitled to indemnification under Sections 8.01 or 8.02. (2) That the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether indemnification is required under Section 8.02. (c) If the court determines under (b) that the director or officer is entitled to indemnification, the corporation shall pay the director's or officer's expenses incurred to obtain the court-ordered indemnification. 8.09. Indemnification and Allowance of Expenses of Employes and Agents. The corporation shall indemnify an employe of the corporation who is not a director or officer of the corporation, to the extent that he or she has been successful on the merits or otherwise in defense of a proceeding, for all reasonable expenses incurred in the proceeding if the employe was a party because he or she was an employe of the corporation. In addition, the corporation may indemnify and allow reasonable expenses of an employe or agent who is not a director or -17- officer of the corporation to the extent provided by the Articles of Incorporation or these Bylaws, by general or specific action of the Board of Directors or by contract. 8.10. Insurance. The corporation may purchase and maintain insurance on behalf of an individual who is an employe, agent, director or officer of the corporation against liability asserted against or incurred by the individual in his or her capacity as an employe, agent, director or officer, regardless of whether the corporation is required or authorized to indemnify or allow expenses to the individual against the same liability under Sections 8.01, 8.02, 8.06, 8.07 and 8.09. 8.11. Securities Law Claims. (a) Pursuant to the public policy of the State of Wisconsin, the corporation shall provide indemnification and allowance of expenses and may insure for any liability incurred in connection with a proceeding involving securities regulation described under (b) to the extent required or permitted under Sections 8.01 to 8.10. (b) Sections 8.01 to 8.10 apply, to the extent applicable to any other proceeding, to any proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities, securities brokers or dealers, or investment companies or investment advisers. 8.12. Liberal Construction. In order for the corporation to obtain and retain qualified directors, officers and employes, the foregoing provisions shall be liberally administered in order to afford maximum indemnification of directors, officers and, where Section 8.09 of these Bylaws applies, employes. The indemnification above provided for shall be granted in all applicable cases unless to do so would clearly contravene law, controlling precedent or public policy. 8.13. Definitions Applicable to this Article. For purposes of this Article: (a) "Affiliate" shall include, without limitation, any corporation, partnership, joint venture, employe benefit plan, trust or other enterprise that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the corporation. (b) "Corporation" means this corporation and any domestic or foreign predecessor of this corporation where the predecessor corporation's existence ceased upon the consummation of a merger or other transaction. (c) "Director or officer" means any of the following: (1) An individual who is or was a director or officer of this corporation. -18- (2) An individual who, while a director or officer of this corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, member of any governing or decision-making committee, employe or agent of another corporation or foreign corporation, partnership, joint venture, trust or other enterprise. (3) An individual who, while a director or officer of this corporation, is or was serving an employe benefit plan because his or her duties to the corporation also impose duties on, or otherwise involve services by, the person to the plan or to participants in or beneficiaries of the plan. (4) Unless the context requires otherwise, the estate or personal representative of a director or officer. For purposes of this Article, it shall be conclusively presumed that any director or officer serving as a director, officer, partner, trustee, member of any governing or decision-making committee, employe or agent of an affiliate shall be so serving at the request of the corporation (d) "Expenses" include fees, costs, charges, disbursements, attorney fees and other expenses incurred in connection with a proceeding. (e) "Liability" includes the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including an excise tax assessed with respect to an employe benefit plan, and reasonable expenses. (f) "Party" includes an individual who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding. (g) "Proceeding" means any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person. ARTICLE IX. SEAL The Board of Directors may provide a corporate seal which may be circular in form and have inscribed thereon the name of the corporation and the state of incorporation and the words "Corporate Seal." ARTICLE X. AMENDMENTS 10.01. By Shareholders. These Bylaws may be amended or repealed and new Bylaws may be adopted by the shareholders by the vote provided in Section 2.07 of these Bylaws or as specifically provided below. If authorized by the Articles of Incorporation, the shareholders may adopt or amend a Bylaw that fixes a greater or lower quorum requirement or -19- a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided by in the Wisconsin Business Corporation Law. The adoption or amendment of a Bylaw that adds, changes or deletes a greater or lower quorum requirement or a greater voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect. 10.02. By Directors. Except as the Articles of Incorporation may otherwise provide, these Bylaws may also be amended or repealed and new Bylaws may be adopted by the Board of Directors by the vote provided in Section 3.08, but (a) no Bylaw adopted by the shareholders shall be amended, repealed or readopted by the Board of Directors if the Bylaw so adopted so provides and (b) a Bylaw adopted or amended by the shareholders that fixes a greater or lower quorum requirement or a greater voting requirement for the Board of Directors than otherwise is provided in the Wisconsin Business Corporation Law may not be amended or repealed by the Board of Directors unless the Bylaw expressly provides that it may be amended or repealed by a specified vote of the Board of Directors. Action by the Board of Directors to adopt or amend a Bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect, unless a different voting requirement is specified as provided by the preceding sentence. A Bylaw that fixes a greater or lower quorum requirement or a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided in the Wisconsin Business Corporation Law may not be adopted, amended or repealed by the Board of Directors. 10.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the Bylaws then in effect but is taken or authorized by a vote that would be sufficient to amend the Bylaws so that the Bylaws would be consistent with such action, shall be given the same effect as though the Bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized. -20- EX-3.44 43 manx3-44.txt CHARTER OF DIVERSIFIED REFRIGERATION, INC. Exhibit 3.44 CHARTER OF DIVERSIFIED REFRIGERATION, INC. The undersigned natural person or persons, having capacity to contract and acting as the incorporator or incorporators of a corporation under the Tennessee General Corporation Act, adopt the following charter for such corporation: 1. The name of the corporation is: Diversified Refrigeration, Inc. 2. The duration of the corporation is perpetual. 3. The address of the principal office of the corporation in the State of Tennessee shall be 789 Peach Street, Selmer, Tennessee 38375. 4. The corporation is for profit. 5. The purpose or purposes for which the corporation is organized are: The general nature of the business or businesses to be transacted shall be to manufacture, buy, sell, deal in, and to engage in, conduct, and carry on the business of manufacturing, buying, selling, and dealing in, goods, wares, and merchandise of every description, including the manufacturing, buying, selling, importing, exporting, and generally dealing in furniture, refrigerators, freezers, coolers, air conditioners, and kindred items, domestic, business and commercial lines; to manufacture as herein specified, either directly or indirectly, or by contract with other corporation or individuals; and to carry on a general manufacturing wholesale and retail merchandise business; and for the better attainment of the general purpose thus indicated, to purchase, lease, hold and convey all necessary property, or interest therein, real or personal wheresoever the same may be situated. 6. The maximum number of shares which the corporation shall have the authority to issue is Two Million (2,000,000) shares, with no par value. 7. The corporation will not commence business until consideration of One Thousand and No/100-($1,000.00)-Dollars has been received for the issuance of shares. 2 EX-3.45 44 manx3-45.txt BYLAWS OF DIVERSIFIED REFRIGERATION, INC. Exhibit 3.45 BYLAWS OF DIVERSIFIED REFRIGERATION, INC. (A TENNESSEE CORPORATION) INDEX Page Number ARTICLE ONE OFFICES...........................................................1 SECTION 1. REGISTERED OFFICE...........................................1 SECTION 2. OTHER OFFICES...............................................1 ARTICLE TWO MEETINGS OF SHAREHOLDERS..........................................1 SECTION 1. PLACE.......................................................1 SECTION 2. TIME OF ANNUAL MEETING......................................1 SECTION 3. CALL OF SPECIAL MEETINGS....................................1 SECTION 4. CONDUCT OF MEETINGS.........................................1 SECTION 5. NOTICE AND WAIVER OF NOTICE.................................2 SECTION 6. BUSINESS OF SPECIAL MEETING.................................2 SECTION 7. QUORUM......................................................2 SECTION 8. REQUIRED VOTE...............................................2 SECTION 9. VOTING OF SHARES............................................2 SECTION 10. PROXIES.....................................................3 SECTION 11. SHAREHOLDER LIST............................................3 SECTION 12. ACTION WITHOUT MEETING......................................3 SECTION 13. FIXING RECORD DATE..........................................3 SECTION 14. INSPECTORS AND JUDGES.......................................4 ARTICLE THREE DIRECTORS.......................................................4 SECTION 1. NUMBER, ELECTION AND TERM...................................4 SECTION 2. VACANCIES...................................................4 SECTION 3. POWERS......................................................5 SECTION 4. PLACE OF MEETINGS...........................................5 SECTION 5. ANNUAL MEETING..............................................5 SECTION 6. REGULAR MEETINGS............................................5 SECTION 7. SPECIAL MEETINGS AND NOTICE.................................5 SECTION 8. QUORUM AND REQUIRED VOTE....................................5 SECTION 9. ACTION WITHOUT MEETING......................................6 SECTION 10. TELEPHONE MEETINGS..........................................6 SECTION 11. COMMITTEES..................................................6 SECTION 12. COMPENSATION OF DIRECTORS...................................6 SECTION 13. CHAIRMAN OF THE BOARD.......................................6 ARTICLE FOUR OFFICERS.........................................................7 SECTION 1. POSITIONS...................................................7 SECTION 2. ELECTION OF SPECIFIED OFFICERS BY BOARD.....................7 SECTION 3. ELECTION OR APPOINTMENT OF OTHER OFFICERS...................7 SECTION 4. SALARIES....................................................7 SECTION 5. TERM........................................................7 SECTION 6. PRESIDENT...................................................7 SECTION 7. VICE PRESIDENTS.............................................7 SECTION 8. SECRETARY...................................................8 SECTION 9. TREASURER...................................................8 ARTICLE FIVE CERTIFICATES FOR SHARES..........................................8 SECTION 1. ISSUE OF CERTIFICATES.......................................8 SECTION 2. LEGENDS FOR PREFERENCES AND RESTRICTIONS ON TRANSFER........8 SECTION 3. FACSIMILE SIGNATURES.......................................10 SECTION 4. LOST CERTIFICATES..........................................10 SECTION 5. TRANSFER OF SHARES.........................................10 SECTION 6. REGISTERED SHAREHOLDERS....................................10 ARTICLE SIX GENERAL PROVISIONS...............................................10 SECTION 1. DIVIDENDS..................................................10 SECTION 2. RESERVES...................................................10 SECTION 3. CHECKS.....................................................10 SECTION 4. FISCAL YEAR................................................10 SECTION 5. SEAL.......................................................11 ARTICLE SEVEN AMENDMENT OF BYLAWS............................................11 DIVERSIFIED REFRIGERATION, INC. BYLAWS Article One OFFICES Section 1. Registered Office. The registered office of DIVERSIFIED REFRIGERATION, INC., a Tennessee corporation (the "Corporation"), shall be located in the City of Knoxville, State of Tennessee. Section 2. Other Offices. The Corporation may also have offices at such other places, either within or without the State of Tennessee, as the Board of Directors of the Corporation (the "Board of Directors") may from time to time determine or as the business of the Corporation may require. ARTICLE TWO MEETINGS OF SHAREHOLDERS Section 1. Place. All annual meetings of shareholders shall be held at such place, within or without the State of Tennessee, as may be designated by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Special meetings of shareholders may be held at such place, within or without the State of Tennessee, and at such time as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Time of Annual Meeting. Annual meetings of shareholders shall be held on such date and at such time fixed, from time to time, by the Board of Directors, provided, that there shall be an annual meeting held every calendar year at which the shareholders shall elect a board of directors and transact such other business as may properly be brought before the meeting. Section 3. Call of Special Meetings. Special meetings of the shareholders may be called by the President, the Board of Directors or by the Secretary on the written request of the holders of not less than a majority of all shares entitled to vote at the meeting. Section 4. Conduct of Meetings. The Chairman of the Board (or in his absence, the President or such other designee of the Chairman of the Board) shall preside at the annual and special meetings of shareholders and shall be given full discretion in establishing the rules and procedures to be followed in conducting the meetings, except as otherwise provided by law or in these Bylaws. Section 5. Notice and Waiver of Notice. Written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the day of the meeting, either personally or by first-class mail, by or at the direction of the President, the Secretary, or the officer or person calling the meeting, to each stockholder of record entitled to vote at such meeting. If the notice is mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. If a meeting is adjourned to another time and/or place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the Board of Directors, after adjournment, fixes a new record date for the adjourned meeting or if the adjournment is for more than 30 days. Notice need not be given to any shareholder who submits a written waiver of notice by him before or after the time stated therein. Attendance of a person at a meeting of shareholders shall constitute a waiver of notice of such meeting, except when a shareholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the shareholders need be specified in any written waiver of notice. Section 6. Business of Special Meeting. Business transacted at any special meeting shall be confined to the purposes stated in the notice thereof. Section 7. Quorum. The holders of a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of shareholders except as otherwise provided in the Corporation's Charter (the "Charter"). If, however, a quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally notified and called. The shareholders present at a duly organized meeting may continue to transact business notwithstanding the withdrawal of some shareholders prior to adjournment, but in no event shall a quorum consist of the holders of less than one-third (1/3) of the shares entitled to vote and thus represented at such meeting. Section 8. Required Vote. The vote of the holders of a majority of the shares entitled to vote and represented at a meeting at which a quorum is present shall be the act of the Corporation's shareholders, unless the vote of a greater number is required by law, the Charter, or these Bylaws. Section 9. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to vote on each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class are limited or denied by the Charter or the Tennessee Business Corporation Act. 2 Section 10. Proxies. A shareholder may vote in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. No proxy shall be voted or acted upon after three (3) years from the date of its execution unless otherwise provided in the proxy. Each proxy shall be revocable unless expressly provided therein to be irrevocable, and unless otherwise made irrevocable by law. Section 11. Shareholder List. The officer or agent having charge of the Corporation's stock transfer books shall make, at least ten (10) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of, and the number and class and series, if any, of shares held by each. Such list, for a period of ten (10) days prior to such meeting, shall be subject to inspection by any shareholder at any time during the usual business hours at the place where the meeting is to be held. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer book or to vote at any such meeting of shareholders. Section 12. Action Without Meeting. Any action required by the statutes to be taken at a meeting of shareholders, or any action that may be taken at a meeting of the shareholders, may be taken without a meeting or notice if a consent, or consents, in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted with respect to the subject matter thereof, and such consent shall be delivered to the Corporation by delivery to its registered office, its principal place of business, or an officer or agent of the Corporation, having custody of the book in which proceedings of meetings of shareholders are recorded. Delivery made to the Corporation's registered office shall be by hand or certified mail, return receipt requested. Such consent shall have the same force and effect as a vote of shareholders taken at such a meeting. Section 13. Fixing Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purposes, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty (60) days, and, in case of a meeting of shareholders, not less than ten (10) days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which the notice of the meeting is mailed or the date on which the resolutions of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in 3 this Section, such determination shall apply to any adjournment thereof, except where the Board of Directors fixes a new record date for the adjourned meeting. Section 14. Inspectors and Judges. The Board of Directors in advance of any meeting may, but need not, appoint one or more inspectors of election or judges of the vote, as the case may be, to act at the meeting or any adjournment thereof. If any inspector or inspectors, or judge or judges, are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors or judges. In case any person who may be appointed as an inspector or judge fails to appear or act, the vacancy may be filled by the Board of Directors in advance of the meeting, or at the meeting by the person presiding thereat. The inspectors or judges, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots and consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate votes, ballots and consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. On request of the person presiding at the meeting, the inspector or inspectors or judge or judges, if any, shall make a report in writing of any challenge, question or matter determined by him or them, and execute a certificate of any fact found by him or them. ARTICLE THREE DIRECTORS Section 1. Number, Election and Term. The number of directors of the Corporation shall be three; provided, however, that the Board of Directors may fix or change the number of directors from time to time and provided further that no director's term shall be shortened by reason of a resolution reducing the number of directors. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 2 of this Article, and each director elected shall hold office for the term for which he is elected and until his successor is elected and qualified. Directors need not be residents of the State of Tennessee, shareholders of the Corporation or citizens of the United States. Unless provided otherwise by law, any director may be removed at any time, with or without cause, at a special meeting of the shareholders called for that purpose. Section 2. Vacancies. A director may resign at any time by giving written notice to the Board of Directors or the Chairman of the Board. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Any vacancy occurring in the Board of Directors and any directorship to be filled by reason of an increase in the size of the Board of Directors shall be filled by the affirmative vote of a majority of the current directors though less than a quorum of the Board of Directors, or may be filled by an election at an annual or special meeting of the shareholders called for that purpose. A director elected to fill a vacancy shall be elected for the unexpired term of his 4 predecessor in office, or until the next election of one or more directors by shareholders if the vacancy is caused by an increase in the number of directors. Section 3. Powers. The business and affairs of the Corporation shall be managed by its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Charter or by these Bylaws directed or required to be exercised and done by the shareholders. Section 4. Place of Meetings. Meetings of the Board of Directors, regular or special, may be held either within or without the State of Tennessee. Section 5. Annual Meeting. The first meeting of each newly elected Board of Directors shall be held, without call or notice, immediately following each annual meeting of shareholders. Section 6. Regular Meetings. Regular meetings of the Board of Directors may also be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors. Section 7. Special Meetings and Notice. Special meetings of the Board of Directors may be called by the President and shall be called by the Secretary on the written request of any two directors. Written notice of special meetings of the Board of Directors shall be given to each director at least twenty-four (24) hours before the meeting. Except as required by statute, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Notices to directors shall be in writing and delivered personally or mailed to the directors at their addresses appearing on the books of the Corporation. Notice by mail shall be deemed to be given at the time when the same shall be received. Notice to directors may also be given by telegram, and shall be deemed delivered when the same shall be deposited at a telegraph office for transmission and all appropriate fees therefor have been paid. Whenever any notice is required to be given to any director, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Section 8. Quorum and Required Vote. A majority of the directors shall constitute a quorum for the transaction of business and the act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater number is required by the Charter. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. At such adjourned meeting at which a quorum shall be present, any business may be transacted that might have been transacted at the meeting as originally notified and called. 5 Section 9. Action Without Meeting. Any action required or permitted to be taken at a meeting of the Board of Directors or committee thereof may be taken without a meeting if a consent in writing, setting forth the action taken, is signed by all of the members of the Board of Directors or the committee, as the case may be, and such consent shall have the same force and effect as a unanimous vote at a meeting. Section 10. Telephone Meetings. Directors and committee members may participate in and hold a meeting by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground the meeting is not lawfully called or convened. Section 11. Committees. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate from among its members an executive committee and one or more other committees, each of which, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors in the business and affairs of the Corporation except where the action of the full Board of Directors is required by statute. Vacancies in the membership of a committee shall be filled by the Board of Directors at a regular or special meeting of the Board of Directors. The executive committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. The designation of any such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him by law. Section 12. Compensation of Directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. Section 13. Chairman of the Board. The Board of Directors may, in its discretion, choose a chairman of the board who shall preside at meetings of the shareholders and of the directors and shall be an ex officio member of all standing committees. The Chairman of the Board shall have such other powers and shall perform such other duties as shall be designated by the Board of Directors. The Chairman of the Board shall be a member of the Board of Directors but no other officers of the Corporation need be a director. The Chairman of the Board shall serve until his successor is chosen and qualified, but he may be removed at any time by the affirmative vote of a majority of the Board of Directors. 6 ARTICLE FOUR OFFICERS Section 1. Positions. The officers of the Corporation shall consist of a President, one or more Vice Presidents, a Secretary and a Treasurer, and, if elected by the Board of Directors by resolution, a Chairman of the Board. Any two or more offices may be held by the same person. Section 2. Election of Specified Officers by Board. The Board of Directors at its first meeting after each annual meeting of shareholders shall elect a President, one or more Vice Presidents, a Secretary and a Treasurer. Section 3. Election or Appointment of Other Officers. Such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the Board of Directors, or, unless otherwise specified herein, appointed by the President of the Corporation. The Board of Directors shall be advised of appointments by the President at or before the next scheduled Board of Directors meeting. Section 4. Salaries. The salaries of all officers of the Corporation to be elected by the Board of Directors pursuant to Article Four, Section 2 hereof shall be fixed from time to time by the Board of Directors or pursuant to its discretion. The salaries of all other elected or appointed officers of the Corporation shall be fixed from time to time by the President of the Corporation or pursuant to his direction. Section 5. Term. The officers of the Corporation shall hold office until their successors are chosen and qualified. Any officer or agent elected or appointed by the Board of Directors or the President of the Corporation may be removed, with or without cause, by the Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any officers or agents appointed by the President of the Corporation pursuant to Section 3 of this Article Four may also be removed from such officer positions by the President, with or without cause. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise shall be filled by the Board of Directors, or, in the case of an officer appointed by the President of the Corporation, by the President or the Board of Directors. Section 6. President. The President shall be the Chief Executive Officer of the Corporation, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. In the absence of the Chairman of the Board or in the event the Board of Directors shall not have designated a chairman of the board, the President shall preside at meetings of the shareholders and the Board of Directors. Section 7. Vice Presidents. The Vice Presidents in the order of their seniority, unless otherwise determined by the Board of Directors, shall, in the absence or 7 disability of the President, perform the duties and exercise the powers of the President. They shall perform such other duties and have such other powers as the Board of Directors shall prescribe or as the President may from time to time delegate. Section 8. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and record all the proceedings of the meetings of the shareholders and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. He shall keep in safe custody the seal of the Corporation and, when authorized by the Board of Directors, affix the same to any instrument requiring it. Section 9. Treasurer. The Treasurer shall have the custody of corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors at its regular meetings or when the Board of Directors so requires an account of all his transactions as treasurer and of the financial condition of the Corporation. ARTICLE FIVE CERTIFICATES FOR SHARES Section 1. Issue of Certificates. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificate (and upon request every holder of uncertificated shares) shall be entitled to have a certificate signed by, or in the name of the Corporation by the Chairman or Vice-Chairman of the Board of Directors, or the President or Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares registered in certificate form. Section 2. Legends for Preferences and Restrictions on Transfer. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of 8 the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided by law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. A written restriction on the transfer or registration of transfer of a security of the Corporation, if permitted by law and noted conspicuously on the certificate representing the security may be enforced against the holder of the restricted security or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder. Unless noted conspicuously on the certificate representing the security, a restriction, even though permitted by law, is ineffective except against a person with actual knowledge of the restriction. If the Corporation issues any shares that are not registered under the Securities Act of 1933, as amended, and registered or qualified under the applicable state securities laws, the transfer of any such shares shall be restricted substantially in accordance with the following legend: "THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE LAW, OR (2) AT HOLDER'S EXPENSE, AN OPINION (SATISFACTORY TO THE CORPORATION) OF COUNSEL (SATISFACTORY TO THE CORPORATION) THAT REGISTRATION IS NOT REQUIRED." Section 3. Facsimile Signatures. Any and all signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signatures has been placed upon such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of the issue. Section 4. Lost Certificates. The Corporation may issue a new certificate of stock in place of any certificate therefore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen, or destroyed certificate, or his legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. Section 5. Transfer of Shares. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by 9 proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 6. Registered Shareholders. The Corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Tennessee. ARTICLE SIX GENERAL PROVISIONS Section 1. Dividends. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in cash, property, or its own shares pursuant to law and subject to the provisions of the Charter. Section 2. Reserves. The Board of Directors may by resolution create a reserve or reserves out of earned surplus for any proper purpose or purposes, and may abolish any such reserve in the same manner. Section 3. Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 4. Fiscal Year. The fiscal year of the Corporation shall end on December 31 of each year, unless otherwise fixed by resolution of the Board of Directors. Section 5. Seal. The corporate seal shall have inscribed thereon the name and state of incorporation of the Corporation. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE SEVEN AMENDMENTS OF BYLAWS These Bylaws may be altered, amended or repealed or new Bylaws may be adopted at any meeting of the Board of Directors at which a quorum is present, by the affirmative vote of a majority of the directors present at such meeting. 10 EX-3.46 45 manx3-46.txt ARTICLES OF MANITOWOC WESTERN COMPANY Exhibit 3.46 ARTICLES OF INCORPORATION OF MANITOWOC WESTERN COMPANY, INC. ARTICLE I. NAME The name of the corporation shall be Manitowoc Western Company, Inc. ARTICLE II. PURPOSE The purpose for which this corporation is organized is to engage in any lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes. ARTICLE III. CAPITAL STOCK A. The aggregate number of shares which this corporation shall have authority to issue is 50,000 of a single class designated as "Common Stock," having a par value of $1.00 per share. B. No holder of any stock of the corporation shall have any preemptive or other subscription rights nor be entitled, as of right, to purchase or subscribe for any part of the unissued stock of this corporation or of any additional stock issued by reason of any increase in authorized capital stock of this corporation or other securities, whether or not convertible into stock of the corporation. ARTICLE IV. LIMITATIONS ON TRANSFER OF STOCK The transferability of any of the stock of the corporation may be restricted from time to time by the shareholders by appropriate provision in the by-laws or by agreement or agreements entered into by any shareholder or shareholders with the corporation and/or any other shareholder or shareholders, and/or with any third persons, and the shares of stock of such shareholder or shareholders thereupon shall be subject to such by-laws, agreement or agreements and shall be transferable only upon proof of compliance therewith; provided, however, that such by-laws, agreement or agreements shall be filed with the corporation and reference thereto placed on the certificate or certificates of stock. ARTICLE V. REGISTERED OFFICE AND AGENT The registered office of the corporation is 500 South 16th Street, P.O. Box 66, Manitowoc, County of Manitowoc, Wisconsin 54220 and the name of the registered agent at such office is P. Ralph Helm. ARTICLE VI. DIRECTORS The number of Directors may be fixed from time to time by the by-laws but shall not be less than the minimum number allowed by Wisconsin law. The Directors need not be shareholders and officers need not be Directors. The initial Board of Directors shall consist of three (3) members whose names are as follows: P. Ralph Helm Frank E. Stevens G. Michael Decker ARTICLE VII. INCORPORATOR The name and address of the Incorporator is John M. Olson, 2100 Marine Plaza, Milwaukee, Wisconsin 53202. ARTICLE VIII. PURCHASE OF SHARES BY CORPORATION The corporation is authorized by action of the Board of Directors, without the consent of the shareholders, to purchase, take, receive or otherwise acquire shares of the capital stock of the corporation, subject to the applicable provisions of Wisconsin law. ARTICLE IX. RECORDING This document shall be recorded in Manitowoc County, Wisconsin. EX-3.47 46 manx3-47.txt BYLAWS OF MANITOWOC WESTERN COMPANY Exhibit 3.47 BY-LAWS OF MANITOWOC WESTERN COMPANY, INC. (a Wisconsin Corporation) INTRODUCTION - VARIABLE REFERENCES Date of Adoption of these By-Laws: Date of Incorporation: July 27, 1987 0.01. Date of annual shareholders' meeting (see Section 2.01): First Monday November 1988 - ------------------- ------------ ------------- -------------- (Week) (Day) (Month) (First Year) * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than 10 days. * 0.03. Authorized number of directors (see Section 3.01): three (3) * 0.04. Required notice of directors' meetings (see Section 3.05): (a) Not less than 48 hours if by mail, and * (b) Not less than 24 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall end on December 31 of each year. * These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held in each year on the date set forth in Section 0.01, at the hour designated in the written notice of said meeting given pursuant to Section 2.04, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Wisconsin, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meting and shall be subject to the inspection of any shareholders during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders but in no event shall a quorum consist of less than one-third of the shares entitled to vote at the meeting. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote by proxy appointed in writing by shareholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. The Board of Directors shall have the power and authority to make rules establishing presumptions as to the validity and sufficiency of proxies. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the board of directors or by the by-laws of such other corporation. (b) Legal Representatives or Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the name of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. 2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Wisconsin Business Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote of a majority of the outstanding shares entitled to vote for the election of such director, taken at a meeting of shareholders called for that purpose. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Wisconsin. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of three or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the Resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one); President, one or more Vice President, one or more Vice Presidents, one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President; Secretary; and Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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 Vice President and President and Secretary. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board of Directors shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of Directors; and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other office or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act then the Senior Vice President or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which address shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board if Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by this Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificate for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificates for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02. Transactions with the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, providing that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly an severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. No contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if 1) the fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or 2) the fact of such shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent or 3) the contract or transaction is fair and reasonable to the corporation. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. 7.03. Reimbursement of Disallowed Expense. In the event of any payment (either as compensation, interest, rent, expense reimbursement or otherwise) to any officer, director or shareholder which is claimed as a deduction by this corporation for federal income tax purposes shall subsequently be determined not to be deductible in whole or in part by this corporation, such officer, director, or shareholder as the case may be, shall reimburse the corporation for the amount of such payment so disallowed provided that this provision shall not apply to any expense where the Board of Directors, in its sole discretion, determines such disallowance (including any concession of such issue by the corporation in connection with the settlement of other issues in a disputed case) is manifestly unfair and contrary to the facts. For purposes of this provision, any such payment shall be determined not to be deductible when and only when either (a) the same may have been determined by a court of competent jurisdiction and either the corporation shall not have appealed from such determination or the time for perfecting an appeal shall have expired or (b) such disallowed deduction shall constitute or be contained in a settlement with the Internal Revenue Service which settlement may have been authorized by the Board of Directors. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors may provide for a corporate seal, which shall be circular in form and shall have inscribed thereon the name of the corporation and the words "Corporate Seal, Wisconsin." 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.48 47 manx3-48.txt ARTICLES OF HARFORD DURACOOL, LLC Exhibit 3.48 ARTICLES OF ORGANIZATION OF HARFORD DURACOOL, LLC The undersigned does hereby organize a limited liability company under Chapter 183 of the Wisconsin Statutes as follows: ARTICLE I NAME The name of the limited liability company is Harford Duracool, LLC. ARTICLE II REGISTERED OFFICE AND AGENT The street address of the initial registered office of the limited liability company is 500 South 16th Street, Manitowoc, Wisconsin 54221 and the name of the registered agent at such office is Maurice D. Jones. ARTICLE III MANAGEMENT Management of the limited liability company shall be vested in its member(s). ARTICLE IV ORGANIZER The name and address of the organizer is Charles M. Weber, Quarles & Brady LLP, 411 East Wisconsin Avenue, Milwaukee, WI 53202-4497. EX-3.49 48 manx3-49.txt CERTIFICATE OF POTAIN CORPORATION Exhibit 3.49 Certificate of Incorporation of Potain Corporation FIRST: NAME The name of the corporation is POTAIN CORPORATION. SECOND: REGISTERED AGENT AND OFFICE. The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: PURPOSES. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be now or hereafter organized under the General Corporation Law of Delaware. FOURTH: CAPITALIZATION. The total number of shares of capital stock which the Corporation is authorized to issue is one million two hundred thousand (1,200,000) shares of Common Stock having a par value of One Dollar ($1.00) per common share. FIFTH: INCORPORATORS. The name and mailing address of each incorporator are: Name: Address: ---- ------- Claudio Riedi, Esq. Baur, Woodbridge, Reus & Klein, P.A. 100 N. Biscayne Blvd., 21st Fl. Miami, Florida 33132-2306 SIXTH: DURATION. The Corporation is to have perpetual existence. SEVENTH: DIRECTORS. (a) Number of Directors. The number of directors shall be five (5). (b) Manner of Election. Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide. (c) Stockholder Nomination of Director Candidates. Advance notice of nominations by stockholders of persons for election to the Board of Directors shall be given in the manner provided in the Bylaws. EIGHTH: LOCATION OF BOOKS AND RECORDS; MEETINGS OF STOCKHOLDERS The books and records of the Corporation may be kept (subject to any applicable statutory provision) outside the State of Delaware at such place or places as may be designated from time to time in the Bylaws of the Corporation. Meetings of the stockholders may be held within or without the State of Delaware, as the bylaws may provide. NINTH: CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action by any provision of the General Corporation Law of the State of Delaware, the meeting and vote of stockholders may be dispensed with if one or more written consents setting forth the action so taken, shall be signed by not less than a majority of all the stock entitled to be voted upon such action if a meeting were held or by such super majority as may be provided in the Bylaws, provided, however, that in no case shall the written consent be by the holders of stock having less than the minimum percentage of the vote required by statute or the bylaws for such action, and provided further that prompt notice is given to all stockholders of the taking of corporate action without a meeting and by less than unanimous written consent. TENTH: PREEMPTIVE RIGHTS. The holders from time to time of the shares of the Corporation shall have the preemptive right to purchase, at such respective equitable prices, terms and conditions as shall be fixed by the Board of Directors, such of the shares of the Corporation as may be issued, from time to time, over and above the issue of the first ten thousand (10,000) shares of the Corporation and which have never previously been sold. Such preemptive right shall apply to all shares issued after such first ten thousand (10,000) shares, whether such additional shares constitute a part of the shares presently or subsequently authorized or constitute shares held in the treasury of the Corporation, and shall be exercised in the respective ratio which the number of shares held by each Stockholder at the time of such issue bears to the total number of shares outstanding in the names of all stockholders at such time. ELEVENTH: INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES Any person who was or is a party or is threatened to be a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action or suit by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the Corporation if, as and to the extent authorized by the laws of the State of Delaware, against expenses (including the attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by such person, in connection with the defense or settlement of such action, suit, investigation or proceeding. The indemnification expressly provided by statute in a specific case shall not be deemed exclusive of any other rights to which any person indemnified may be entitled under any lawful agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. TWELFTH: LIABILITY OF DIRECTORS A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. THIRTEENTH: AMENDMENT. The Corporation reserves the right to amend, alter, change or repeal any provision contained in the Certificate of Incorporation, and to add or insert other provisions authorized by the laws of the State of Delaware at the time in force, by the affirmative vote of the holders of at least sixty-six and two thirds percent (66 2/3%) of the votes entitled to be cast by the holders of Common Stock, and all rights conferred upon stockholders herein are granted subject to this reservation. EX-3.50 49 manx3-50.txt BYLAWS OF POTAIN CORPORATION Exhibit 3.50 POTAIN CORPORATION BYLAWS ARTICLE I OFFICES Section 1. [Registered Office]. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. [Other Offices]. The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. [Place of Meetings]. All meetings of stockholders for the election of Directors shall be held in the City of Miami, Florida, State of Florida, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. [Time of Annual Meetings]. Annual meetings of stockholders, commencing with the year 2000, shall be held on the third Monday of January if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10 A.M., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as properly may be brought before the meeting. Section 3. [Written Notice of Annual Meeting]. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Section 4. [Record Date; List of Eligible Stockholders]. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any Purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. [Special Meetings of Stockholders]. Special meetings of the stockholders for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the C.E.O. and shall be called by the C.E.O. or secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of Stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. [Written Notice of Special Meetings]. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than three (3) nor more than ten (10) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. [Agenda for Special Meetings]. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. [Quorum; Adjournment]. The holders of fifty percent (50%) of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. [Requirements for Acts of Stockholders]. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. [Voting rights; Proxies]. Unless otherwise provided in the certificate of incorporation, at every meeting of the stockholders, each stockholder shall be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. -2- Section 11. [Written Consent in lieu of Meeting]. Unless otherwise provided in the certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. [Number and Election of Directors]. The corporation shall have five (5) Directors. The Directors shall be elected by holders of the common stock of the Corporation at the annual meeting of stockholders. Section 2. [Vacancies]. Vacancies and newly created Directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, though less than a quorum, or by a sole remaining director, and the Directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no Directors in office, then an election of Directors may be held in the manner provided by statute. If at the time of filling any vacancy or any newly created Directorship, the Directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such Directors, summarily order an election to be held to fill any such vacancies or newly created Directorships, or to replace the Directors chosen by the Directors then in office. Section 3. [Powers of Board of Directors]. The business of the corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. [Place of Meetings]. The Board of Directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. [First Meeting of Board]. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected Directors in order legally to constitute the meeting, provided a quorum shall be -3- present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the Directors. Section 6. [Regular Meetings of Board]. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board. Section 7. [Special Meetings of Board]. Special meetings of the Board may be called by the C.E.O. on no less than three (3) days' notice to each Director, either personally or by mail or by facsimile communication; special meetings shall be called by the C.E.O. or secretary in like manner and on like notice on the written request of two Directors unless the Board consists of only one Director; in which case special meetings shall be called by the C.E.O. or secretary in like manner and on like notice on the written request of the sole Director. Section 8. [Quorum; Acts of Board; Adjournment]. At all meetings of the Board, three (3) Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the Board of Directors the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. [Written Consent in Lieu of Meeting]. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if a majority of the members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 10. [Participation in Meetings by Electronic Means]. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. [Committees of the Board]. The Board of Directors may designate one or more committees, each committee to consist of one or more of the Directors of the corporation. The Board may designate one or more Directors as alternate members of any -4- committee who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any by-law of the corporation. Such committee or committees shall have such name or names as may be determined from time to time by Resolution adopted by the Board of Directors. Section 12. [Minutes of Committee Meetings]. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. REMOVAL OF DIRECTORS Section 13. [Removal of Directors]. Unless otherwise restricted by the certificate of incorporation or bylaw, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of Directors. ARTICLE IV NOTICES Section 1. [Form of Notice; When Given]. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any Director or stockholders, such provision shall not be construed to require personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his or her address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to Directors may also be given by facsimile telecommunication. Section 2. [Waiver of Notice]. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these bylaws, a waiver thereof, in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. [Officers]. The officers of the corporation shall be chosen by the Board of Directors and shall be a C.E.O., a secretary and a C.F.O. The Board of Directors may also -5- choose one or more assistant secretaries and assistant C.F.O.'s. Any number of offices may be held by the same person, unless the certificate of incorporation or these bylaws otherwise provide. Section 2. [Designation of Officers]. The Board of Directors at its first meeting after each annual meeting of stockholders shall choose a C.E.O., a secretary and a C.F.O. Section 3. [Additional Officers]. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. Section 4. [Salaries]. The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors. Section 5. [Term of Office; Removal of Officers]. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors. THE C.E.O. Section 6. [Duties of C.E.O.]. The C.E.O. shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the Board of Directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the Board of Directors and all provisions of the budget are carried into effect, respecting the internal procedures established by the Board of Directors, in particular with regard to accounting, management principles, financing guidelines, reports, investments and human resources management. Section 7. [Powers of C.E.O.]. Subject to Section 8 immediately following, the C.E.O. shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. Section 8. [Board Authorization Required]. Notwithstanding anything herein to the contrary, the C.E.O. may not undertake any of the following acts without the prior written authorization of the Board of Directors. 8.1 Formation of subsidiaries and determination of their activities; 8.2 Establishment of investment funds, or the purchase and sale of commercial funds as an investment; investment in any form in any other companies or entities; -6- 8.3 Purchase, sale or encumbrance of real or personal property; 8.4 Hiring or dismissal of managers and personnel in executive, management or supervisory personnel or any personnel hired by the Board of Directors or designated by the Board of Directors as requiring Board approval for such actions; fulfillment of obligations relating to payment of pensions or retirement funds as well as dealing in any way with participation by employees in the profits or capital stock of the corporation; 8.5 Hiring or dismissal of any employees such as to produce a ten percent (10%) difference (whether more or less) in the payroll from one month to the next; 8.6 Granting credit to any customers (whatever the terms and conditions thereof) allowing payment of sums due to the corporation later than ninety (90) days from the date of the respective invoice or other evidence of a payment obligation, it being understood that credit terms permitting payment at a date up to and including a date ninety (90) days from the date of the obligation shall be considered transactions in the ordinary course of business not requiring Board approval; 8.7 Borrowing funds; 8.8 Making loans to any person, natural or legal, other than advances to employees against salary; 8.9 Granting of general or special powers of attorney in the corporate name; 8.10 Entering into or terminating leases of property, real or personal, and assignments or licensing of trademarks, patents or know-how of any nature whatsoever; THE SECRETARY AND ASSISTANT SECRETARY Section 9. [Duties of Secretary; Powers]. The secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors of C.E.O., under whose supervision the secretary shall act. The secretary shall have custody of the corporate seal of the corporation and the secretary or an assistant secretary shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the secretary's signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. [Assistant Secretary]. The assistant secretary, if any, or if there be more than one, the assistant secretaries, in the order determined by the Board of Directors (or if thee -7- be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. THE C.F.O. AND ASSISTANT C.F.O. Section 11. [Duties of C.F.O.]. The C.F.O. shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects, in the name and to the credit of the corporation, in such depositories as may be designated by the Board of Directors. Section 12. [Accounts]. The C.F.O. shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the C.E.O. and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as C.F.O. and of the financial condition of the corporation. Section 13. [Bond]. If required by the Board of Directors, the C.F.O. shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of secretary and for the restoration to the corporation, in case of death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in such secretary may possess or control and that belong to the corporation. Section 14. [Assistant C.F.O.]. The assistant C.F.O., if any, (or if there shall be more than one, the assistant C.F.O.'s, in the order determined by the Board of Directors, or if there be no such determination then in the order of their election) shall, in the absence of the C.F.O. or in the event of his inability or refusal to act, perform the duties and exercise the powers of the C.F.O. and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. [Stock Certificates; Formal Requirements]. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed in the name of the corporation (a) by the chairman (or vice-chairman if any) of the Board of Directors, or the C.E.O., and (b) by the C.F.O. or an assistant C.F.O., or the secretary or an assistant secretary of the corporation (two signatures required). Section 2. [Facsimile Signatures]. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent -8- or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. [Lost, Stolen or Destroyed Certificates: Replacement]. The Board of Directors may direct a new Certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. [Recording of Transfer]. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. [Establishment of Record Date by Board]. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution of allotment of any rights, or entitled to exercise any tights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. [Stockholders of Record]. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive -9- dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. [Declaration and Payment of Dividends]. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. [Reserves for Contingencies]. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Directors shall think conducive to the interest of the corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. [Statement of Condition of Corporation]. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. [Board to Designate Signatories of Instruments]. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. FISCAL YEAR Section 5. [Board to Establish Fiscal Year]. The fiscal year of the corporation shall begin on January 1 and shall terminate on December 31, unless otherwise established by resolution of the Board of Directors from time to time. -10- SEAL Section 6. [Form and Use of Seal]. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. RESIGNATIONS Section 7. [Resignations]. Any director or other officer may resign at anytime, such resignation to be in writing and to take effect from the time of its receipt by the corporation, unless some time be fixed in the resignation and then from that date. The acceptance of a resignation shall not be required to make it effective. ARTICLE VIII AMENDMENTS Section 1. [Powers of Board and Stockholders regarding Amendments of Bylaws]. These bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the certificate of incorporation, at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal -11- EX-3.51 50 manx3-51.txt AMENDED ARTICLES OF MARINETTE MARINE Exhibit 3.51 AMENDED AND RESTATED ARTICLES OF INCORPORATION MARINETTE MARINE CORPORATION These Amended and Restated Articles of Incorporation supersede and take the place of the existing articles of incorporation of Marinette Marine Corporation and all amendments thereto. ARTICLE 1. The name of the Corporation shall be Marinette Marine Corporation. ARTICLE 2. The period of its duration is perpetual. ARTICLE 3. 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. ARTICLE 4. Section 1. Capital Stock. The Corporation has the authority to issue the following classes and shares of stock. 1.1 Common Stock. Forty thousand (40,000) shares of $10 par value common stock. 1.2 Preferred Stock. Fifty thousand (50,000) shares of $45 par value preferred stock. Section 2. Issuance. The Capital Stock of the Corporation may be issued by the Corporation for such consideration in excess of par value as shall be fixed from time to time by the Board of Directors. When the consideration thus fixed has been received by the Corporation in money, in other property, tangible or intangible, or in labor or services actually performed for the Corporation, such shares shall be deemed fully paid and not liable for further call or assessment thereon. Section 3. Voting Rights. 3.1 Each share of common stock issued and outstanding shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of the shareholders. 3.2 Except as hereinafter provided, the preferred shares, voting as a class, shall be entitled to elect one member of the Board of Directors irrespective of the total number of directors as may be fixed from time to time. In the event any quarterly dividend on preferred shares has not been paid in full, the preferred shares, voting as a class shall be entitled to elect the minimum number of directors comprising a majority of the Board of Directors and any holder or holders of 10 percent or more of the preferred shares shall be entitled to call a special meeting of shareholders for the purpose of conducting an election of directors. In the event of such default, each share of preferred stock issued and outstanding shall also be entitled to one (1) vote on each matter, other than the election of directors, submitted to a vote at a meeting of the shareholders. Section 4. Preference, Limitations and Relative Rights of Each Class of Capital Stock. 4.1 Dividends. Effective October 1, 1974, the holders of Preferred Stock shall be entitled to receive dividends thereon at the rate of $2.25 per share per annum. Such dividends shall be payable quarterly on or before the first day of March, June, September and December for the preceding quarter. Dividends on preferred stock shall be cumulative from year to year and no dividends, other than stock dividends, shall be paid, or other distributions made on shares of Common Stock unless dividends, both cumulative and those owing in the year of distribution on Preferred Stock, have been declared and paid. For the period ending September 30, 1974, a dividend on Preferred Stock in the amount of $0.675 per share shall be paid and thereupon all dividend arrearages to such date shall be extinguished. 4.2 Dissolution or Liquidation. In the event of a dissolution or liquidation of the Corporation, the holders of Preferred Stock shall be entitled to receive the par value of their Preferred Stock before any assets of the Corporation shall be paid or distributed to the holders of Common Stock. The holders of the Preferred Stock shall not be entitled to participate in any distribution of the profits, assets or capital stock of the Corporation either in money, property or stock, except as herein provided. 4.3 Conversion. Shares of Preferred Stock shall not be entitled to any conversion privileges. 4.4 Redemption. (a) Shares of Preferred Stock shall be subject to redemption at the option of the Corporation at any time, or from time to time, five years after the issuance thereof. (b) If any preferred shares are redeemed on or before December 31, 1979, such shares shall be redeemed at a price equal to twelve (12) times the annual dividend amount plus five percent (5%) thereof as a premium thereon, together with unpaid dividends if any. Subsequent to December 31, 1979, the preferred shares shall be callable without the five percent (5%) premium. (c) If less than all of the shares of Preferred Stock shall be so redeemed the Board of Directors shall have full power and discretion to select the particular preferred shares to be redeemed and its decision shall be final and binding. (d) Notice of such redemption, specifying the time and place thereof, shall be mailed not less than thirty days prior to the date on which such redemption is to take place to the holders of record of the Preferred Stock to be redeemed, at their respective addresses as the same shall appear on the books of the Corporation. Any defect in the mailing thereof shall not affect the validity of the redemption or the proceedings for the redemption of any shares of the Preferred Stock so to be redeemed. (e) Such notice of redemption having been mailed, if on or before the redemption date fixed in said notice, the funds necessary for such redemption shall have been deposited in trust, with a bank having trust powers or a trust company in good standing, organized under the laws of the United States of America or of the State of Wisconsin, doing business in the State of Wisconsin, having capital surplus and undivided profits aggregating not less than $1,000,000, and designated in such notice of redemption for the account of holders of the Preferred Stock to be redeemed, so as to be available therefor, then on and after the date so fixed for redemption the shares called for redemption shall no longer be deemed to be outstanding for any purpose whatsoever, and all rights with respect to such shares shall forthwith cease and terminate, except only the right of holders thereof to receive from such bank or trust company, at any time within six (6) years after such deposit, the redemption price of such shares so to be redeemed, and all declared but unpaid dividends (without interest), upon surrender of the certificates representing the same. Any money deposited with such bank or trust company for the redemption of Preferred Stock and not applied to such redemption within six (6) years after such deposit shall be released from all further liability with respect to such stock and the holder of any such shares called for redemption shall thereafter look only to the Corporation for the payment therefor. (f) Shares of Preferred Stock which are redeemed shall be cancelled and shall be restored to authorized but unissued shares of Preferred Stock of the Corporation. ARTICLE 5. The Board of Directors of the Corporation shall have as many directors as the Board shall determine, not to exceed nine directors. ARTICLE 6. The address of the registered office is Marinette Marine Corporation, Marinette, Wisconsin 54143, and the name of the registered agent at this office is Roger Derusha. EX-3.52 51 manx3-52.txt BYLAWS OF MARINETTE MARINE Exhibit 3.52 BY - LAWS OF MARINETTE MARINE CORPORATION (a Wisconsin corporation) INTRODUCTION - VARIABLE REFERENCES Date of Adoption of these By-Laws: Date of Incorporation: 0.01. Date of annual shareholders' meeting (see Section 2.01): * 0.02. Required notice of shareholders' meeting (see Section 2.04): not less than ten (10) days. * 0.03. Authorized number of directors (see Section 3.01): up to nine (9) . * 0.04. Required notice of directors' meetings (see Section 3.05): (a). Not less than 48 hours if by mail, and * (b). Not less than 48 hours if by telegram, cable or radiogram, personal delivery, or word of mouth, telephone or radiophone. * 0.05. The fiscal year shall begin on the first day of January and end on the last day of December of each year (see Section 8.02). * * These spaces are reserved for official notation of future amendments to these sections. ARTICLE I. OFFICES 1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time. 1.02. Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders shall be held at such time and date as determined by the Corporation's Board of Directors and stated in the notice of the meeting, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. 2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by either the President, the Board of Directors, the Chairman of the Board (if the Board of Directors determines to elect one), or by the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting. 2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Wisconsin, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat. 2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid. Notwithstanding the foregoing, the following shall apply in the case of shareholders whose address is in countries other than the United States: All notices shall be given by United States air mail, postage prepaid, which shall be deemed to be delivered (unless actually received sooner) 5 days after deposit in such mail, or by telex or other means of electronic transmission, which shall be deemed to be delivered when electronic acknowledgement of receipt is received by the sender. 2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. 2.06. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. 2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. Except to the extent the Board of Directors may otherwise provide, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. 2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote by proxy appointed in writing by the shareholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. The Board of Directors shall have the power and authority to make rules establishing presumptions as to the validity and sufficiency of proxies. 2.10. Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation. 2.11. Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this Corporation, of the designation of some other person by the board of directors or the by-laws of such other corporation. (b) Legal Representatives and Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors which shares are not standing in the name of such fiduciary may be voted by him, either in person or by proxy, without a transfer of such shares into his name provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary shall be conclusive evidence of the signer's authority to execute such proxy, in the absence of express notice to this Corporation, given in writing to the Secretary of this Corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship. (c) Pledgees. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this Corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such imcompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the names of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote files with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interests of those deceased. 2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Wisconsin Business Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting. 2.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as set forth in Section 0.03. 3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote of a majority of the outstanding shares entitled to vote for the election of such director, taken at a meeting of shareholders called for that purpose. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board (if the Board of Directors determines to elect one), the President, Secretary or any two directors. The Chairman of the Board, President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Wisconsin. 3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given to each director (i) by written notice delivered personally or mailed or given by telegram, cable or radiogram to such director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, or (ii) by word of mouth, telephone or radiophone personally to such director, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, cable or radiogram, such notice shall be deemed to be delivered when the telegram, cable or radiogram is delivered to the transmitting agency. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the actual elected directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. 3.08. Conduct of Meetings. The Chairman of the Board, or in the event the Board of Directors determines not to elect a Chairman of the Board, or in his absence, the President, and in his absence, a Vice President in the order provided under Section 4.08, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as Chairman of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. 3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation. 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Executive Committee and Other Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 0.03 may designate an Executive Committee and one or more other committees, each committee to consist of three or more directors elected by the Board of Directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, provided that in no case shall the Executive Committee or any other committee act in respect to dividends to shareholders, election of principal officers or the filling of vacancies in the Board of Directors, or committees created pursuant to this section. Subject to the foregoing, the other committees, if any, shall have and may exercise such powers as may be provided in the Resolution of the Board of Directors designating such committee, as such resolution may from time to time be amended and supplemented. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall elect a presiding officer from its members, shall fix its own rules governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors or any committee thereof at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or members of such committee entitled to vote with respect to such action. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board (if the Board of Directors determines to elect one), a President, one or more Vice Presidents, one or more of whom may be designated Executive Vice President and one or more of whom may be designated Senior Vice President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers 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. The duties of the officers shall be those enumerated herein and any further duties designated by the Board of Directors. The duties herein specified for particular officers may be transferred to and vested in such other officers as the Board of Directors shall elect or appoint, from time to time and for such periods or without limitation as to time as the Board shall order. 4.02. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successer shall have been duly elected or until his prior death, resignation or removal. 4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. Chairman of the Board. The Chairman of the Board (if the Board of Directors determines to elect one) shall preside at all meetings of the Board of Directors and shall have such further and other authority, responsibility and duties as may be granted to or imposed upon him by the Board of Directors, including without limitation his designation pursuant to Section 4.07 as chief executive officer of the corporation. 4.06. President. The President, unless the Board of Directors shall otherwise order pursuant to Section 4.07, shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and shall preside at all meetings of the Board of Directors unless the Board shall have elected a Chairman of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation's regular business, or which shall be authorized by resolution of the Board of Directors; and except as otherwise provided by law or the Board of Directors, he may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of the chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the event the Board of Directors determines not to elect a Chairman of the Board or in the event of his absence or disability, the President shall perform the duties of the Chairman of the Board and when so acting shall have all the powers of and be subject to all of the duties and restrictions imposed upon the Chairman of the Board. 4.07. Chairman of the Board as Chief Executive Officer. The Board of Directors may designate the Chairman of the Board as the chief executive officer of the corporation. In such event, the Chairman of the Board shall assume all authority, power, duties and responsibilities otherwise appointed to the President pursuant to Section 4.06, and all references to the President in these by-laws shall be regarded as references to the Chairman of the Board as such chief executive officer, except where a contrary meaning is clearly required, and provided that in no case shall the Chairman of the Board be empowered in place of the President to sign the certificates for shares of stock of the corporation. In further consequence of designating the Chairman of the Board as the chief executive officer, the President shall thereby become the chief administrative officer of the corporation. He shall, in the absence of the Chairman of the Board, preside at all meetings of stockholders and directors. During the absence or disability of the Chairman of the Board he shall exercise the functions of the chief executive officer of the Corporation. He shall have authority to sign all certificates, contracts, and other instruments of the corporation necessary or proper to be executed in the course of the corporation's regular business or which shall be authorized by the Board of Directors and shall perform all such other duties as are incident to his office or are properly required of him by the Board of Directors or the Chairman of the Board. He shall have the authority, subject to such rules, directions, or orders, as may be prescribed by the Chairman of the Board or the Board of Directors, to appoint and terminate the appointment of such agents and employees of the corporation as he shall deem necessary, to prescribe their power, duties and compensation and to delegate authority to them. 4.08. The Vice Presidents. At the time of election, one or more of the Vice Presidents may be designated Executive Vice President and one or more of the Vice Presidents may be designated Senior Vice President. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Executive Vice President, or if more than one, the Executive Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, or in the event of his or their inability to act then the Senior Vice President or if more than one, the Senior Vice Presidents in the order designated at the time of their election, or in the absence of any such designation then in the order of their election, or in the event of his or their inability to act, then the other Vice Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their election, shall perform the duties of the President and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or Assistant Secretary certificates for shares of the corporation and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. 4.09. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. 4.10. The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.11. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors. 4.12. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors. 4.13. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS: SPECIAL CORPORATE ACTS 5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers. 5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances. 5.03. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner, including by means of facsimile signatures, as shall from time to time be determined by or under the authority of a resolution of the Board of Directors. 5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors. 5.05. Voting of Securities Owned by this Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent with respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or person designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. 6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. 6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares. 6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation, including the appointment or designation of one or more stock transfer agents and one or more stock registrars. ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION 7.01. Liability of Directors and Officers. No person shall be liable to the corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the corporation, or of any other corporation which he serves as a director or officer at the request of the corporation, in good faith, if such person (a) exercised and used the same degree of care and skill as a prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (b) took or omitted to take such action in reliance upon advice of counsel for the corporation or upon statements made or information furnished by officers or employees of the corporation which he had reasonable grounds to believe to be true. The foregoing shall not be exclusive of other rights and defenses to which he may be entitled as a matter of law. 7.02. Indemnity of Officers and Directors. Every person who is or was a director or officer of the corporation, and any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor, shall (together with their heirs, executors and administrators of such person) be indemnified by the corporation against all costs, damages and expenses asserted against, incurred by or imposed upon him in connection with or resulting from any claim, action, suit or proceeding, including criminal proceedings, to which he is made or threatened to be made a party by reason of his being or having been such director or officer, except in relation to matters as to which a recovery shall be had against him by reason of his having been finally adjudged in such action, suit or proceeding to have been guilty of fraud in the performance of his duty as such officer or director. This indemnity shall include reimbursement of amounts and expenses incurred and paid in settling any such claim, action, suit or proceeding. In the case of a criminal action, suit or proceeding, a conviction or judgment (whether based on a plea of guilty or nolo contendere or its equivalent, or after trial) shall not be deemed an adjudication that such director or officer is guilty of fraud in the performance of his duties, if such director or officer was acting in good faith in what he considered to be the best interests of the corporation and with no reasonable cause to believe that the action was illegal. The corporation, by its Board of Directors, may indemnify in like manner, or with any limitations, any employee or former employee of the corporation with respect to any action taken or not taken in his capacity as such employee. The foregoing rights of indemnification shall be in addition to all rights to which officers, directors or employees may be entitled as a matter of law. 7.03. Transactions with the Corporation. The Board of Directors may from time to time authorize transactions by officers, directors and employees with the corporation, and may authorize lending money and granting credit of the corporation to or for the use of such officers, directors and employees, provided that the directors who vote for or assent to the making of a loan to an officer or director of the corporation shall be jointly and severally liable to the corporation for the amount of such loan until the repayment thereof, unless such directors shall sustain the burden of proof that such loan was made for a proper business purpose. Any contract or other transaction between the corporation and one or more of its directors, or between the corporation and any firm of which one or more of its directors are members or employees, or in which they are interested, or between the corporation and any corporation or association of which one or more of its directors are shareholders, members, directors, officers, or employees, or in which they are interested, shall be valid for all purposes, notwithstanding the presence of such director or directors at the meeting of the Board of Directors of the corporation, which acts upon, or in reference to, such contract or transaction, and notwithstanding his or their participation in such action, if the fact of such interest shall be disclosed or known to the Board of Directors and the Board of Directors shall, nevertheless, authorize, approve and ratify such contract or transaction by a vote of a majority of the directors present, such interested director or directors to be counted in determining whether a quorum is present, but not to be counted in calculating the majority of such quorum necessary to carry such vote. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. ARTICLE VIII. GENERAL 8.01. Seal. The Board of Directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation and the words "Corporate Seal, Wisconsin." 8.02. Fiscal Year. The fiscal year of the corporation shall be as provided in Section 0.05. ARTICLE IX. AMENDMENTS 9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance. 9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far as is necessary to permit the specific action so taken or authorized. EX-3.53 52 manx3-53.txt ARTICLES OF MANITOWOC MARINE GROUP Exhibit 3.53 ARTICLES OF ORGANIZATION OF MANITOWOC MARINE GROUP, LLC a Nevada Limited-Liability Company I, the undersigned, pursuant to the Nevada Revised Statutes governing limited-liability companies, hereby adopt the following Articles of Organization for a limited-liability company: ARTICLE I NAME The name of the limited-liability company is Manitowoc Marine Group, LLC, a Nevada limited-liability Company (the "Company"). ARTICLE II PERPETUAL EXISTENCE The Company shall have perpetual existence. ARTICLE III GENERAL PURPOSE This Company is organized for all lawful purposes, except insurance. ARTICLE IV PLACE OF BUSINESS The address of the principal place of business of the Company and where the Company's records will be maintained in Nevada, as required by NRS 86.241 is: 50 West Liberty Street Reno, NV 89501 ARTICLE V RESIDENT AGENT The name and business address of the resident agent of this Company is: Jones Vargas 100 West Liberty Street, Twelfth Floor P.O. Box 281 Reno, Nevada 89504 ARTICLE VI MEMBERS Additional members may only be admitted as provided in the Operating Agreement. ARTICLE VII MANAGEMENT BY MEMBER This Company shall be managed by its initial member. The initial member shall have the right to contract debts on behalf of the Company. The name and address of the initial member is as follows: The Manitowoc Company, Inc. 500 South 16th Street P.O. Box 66 Manitowoc, Wisconsin 54221-0066 ARTICLE VIII ORGANIZER The name and address of the organizer signing these Articles of Organization is as follows: Michael G. Alonso 100 West Liberty Street, Twelfth Floor Jones Vargas P.O. Box 281 Reno, Nevada 89504 ARTICLE IX INDEMNITY Section 9.01. Right to Indemnity. Every person who was or is a party, or is threatened to be made party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a member of this Company, or is or was serving at the request of this Company as a manager of another limited-liability company, or as a director, officer or representative in a corporation, partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under the laws of the State of Nevada from time to time against all expenses, liability and loss (including attorneys' fees, judgments, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. Such right of indemnification shall be a contract right which may be enforced in any manner desired by such person. Such right of the indemnification shall not be exclusive of any other right which such members or representatives may have or hereafter acquire, and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any operating agreement or other agreement, vote of members, provision of law, or otherwise, as well as their rights under this Article. Section 9.02. Expenses Advanced. Expenses of members incurred in defending a civil or criminal action, suit or proceeding by reason of any act or omission of such members acting as a member shall be paid by the Company as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of any undertaking by or on behalf of the manager or member to repay the amount if it is ultimately determined by a court of competent jurisdiction that he is not entitled to be indemnified by the Company. Section 9.03. Operating Agreement; Insurance. Without limiting the application of the foregoing, the member may adopt a provision in the operating agreement from time to time with respect to indemnification, to provide at all times the fullest indemnification permitted by the laws of the State of Nevada, and may cause this Company to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a member of this Company as a member of another limited-liability company, or as its representative in a corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, to the fullest extent permitted by the laws of the State of Nevada, whether or not this Company would have the power to indemnify such person. The indemnification and advancement of expenses provided in this Article shall continue for a person who has ceased to be a member, employee or agent, and inures to the benefit of the heirs, executors and administrators of such a person. EX-4.3 53 manx4-3.txt FORM OF NEW SENIOR SUBORDINATED NOTES Exhibit 4.3 THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A COMMON DEPOSITARY OR A NOMINEE OF A COMMON DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE COMMON DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE TO A COMMON DEPOSITARY OR A NOMINEE OF THE COMMON DEPOSITARY OR TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTIONS 2.01, 2.07, 2.08, 3.04, AND 4.11 OF THE INDENTURE, (II) EXCEPT AS OTHERWISE PROVIDED IN THE INDENTURE, THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR COMMON DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. THE MANITOWOC COMPANY, INC. 10 3/8% Senior Subordinated Note Due 2011 E_____________ ISIN No.: ____________ Common Code: _________ No. 001 THE MANITOWOC COMPANY, INC., a Wisconsin corporation (the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, promise to pay to THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED, or its registered assigns, the principal sum of Euro ______________ (E5_________) on May 15, 2011. Interest Payment Dates: May 15 and November 15 commencing November 15, 2001. Regular Record Dates: May 1 and November 1 . Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. -2- IN WITNESS WHEREOF, the Company has caused this Note to be signed manually by its duly authorized signatories. THE MANITOWOC COMPANY, INC. By: ----------------------------------- Name: Title: (Trustee's Certificate of Authentication) This is one of the 10 3/8% Senior Subordinated Notes due 2011 described in the within-mentioned Indenture. Date: _________, 2001 THE BANK OF NEW YORK, as Trustee By: ----------------------------------- Name: Title: -3- THE MANITOWOC COMPANY, INC. 10 3/8% Senior Subordinated Note due 2011 1. Principal and Interest. ---------------------- The Company shall pay the principal of this Note on May 15, 2011. The Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above. Interest will be paid semi-annually in arrears on each Interest Payment Date, commencing November 15, 2001. Interest on this Note will accrue from the latest date to which interest has been paid on the Restricted Notes (as defined below) or, if no interest has been paid, the Issue Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at a rate per annum that is the then applicable interest rate borne by the Notes. 2. Method of Payment. ----------------- The Company shall pay interest on the principal amount of the Notes on each May 15 and November 15 to the persons who are Holders of the relevant Notes on the May 1 or November 1, as the case may be, immediately preceding such Interest Payment Date (as reflected in the Register at the close of business on the Regular Record Date), in each case, even if the Note is canceled on registration of transfer or registration of exchange after such record date. The Company shall make payments of principal on the Notes to Holders that surrender Notes to the Paying Agent. If a Holder has given wire transfer instructions to the Paying Agent at least 15 days prior to any payment, the Company shall make all principal, premium and interest payments on the Notes owned by such Holder in accordance with those instructions. All other payments on the Notes shall be made by check mailed to the Holders at their address set forth in the register of Holders, or in the case of the final payment of principal and interest, if any, on any Note, upon presentation and surrender of such Note at the office of the Paying Agent. All payments on the Notes will be made in Euros. 3. Paying Agent and Registrar. -------------------------- Initially, the Company has appointed the corporate trust office of the Trustee in The City of New York located at the address set forth in Section 13.02 of the Indenture as Paying Agent in The City of New York. So long as the Notes are listed on the Luxembourg Stock Exchange and the rules of such stock exchange so require, the Company shall maintain a Paying Agent and Transfer Agent in Luxembourg. -4- 4. Indenture; Limitations. ---------------------- The Company issued the Notes under an Indenture dated as of May 9, 2001 (the "Indenture"), among the Company, the Guarantors named therein and The Bank of New York, as trustee (the "Trustee"). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. This Note is one of a duly authorized issue of Notes of the Company designated as its 10 3/8% Senior Subordinated Notes due 2011 (the "Unrestricted Notes"). The Unrestricted Notes are initially being issued in the aggregate principal amount of E___________. The Company shall be entitled to issue Additional Notes pursuant to Section 2.14 of the Indenture (the "Additional Notes"). The Notes include the 10 3/8% Senior Subordinated Notes due 2011 of the Company (the "Restricted Notes") exchanged for the Unrestricted Notes pursuant to the Registration Rights Agreement. The Unrestricted Notes, the Additional Notes and the Restricted Notes are treated as a single class of securities under the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. This is one of the Notes referred to in the Indenture. The Notes are unsecured and unsubordinated obligations of the Company. 5. Redemption. ---------- Optional Redemption. Except as described below, the Notes are not redeemable before May 15, 2006. Thereafter, the Company may redeem the Notes at its option, in whole or in part, upon not less than 30 nor more than 60 days' notice to the Holders, at the following redemption prices (expressed as percentages of the principal amount thereof) if redeemed during the twelve-month period commencing on May 15 of the years set forth below: Year Percentage ---- ---------- 2006................................................. 105.188% 2007................................................. 103.458% 2008................................................. 101.729% 2009 and thereafter.................................. 100.000% In addition, the Company must pay accrued and unpaid interest on the Notes redeemed. Optional Redemption upon Public Equity Offerings. At any time, or from time to time, on or prior to May 15, 2004, the Company may, at its option, use the net cash proceeds of one or more Public Equity Offerings (as defined below) to redeem up to 35% of the principal amount of the Notes (including any Additional Notes) outstanding under the Indenture at a redemption price of 110.375% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of redemption; provided that: -5- (1) at least 65% of the principal amount of Notes (including any Additional Notes) outstanding under the Indenture remains outstanding immediately after any such redemption; and (2) the Company makes such redemption not more than 90 days after the consummation of any such Public Equity Offering. "Public Equity Offering" means an underwritten public offering of Qualified Capital Stock of the Company pursuant to a registration statement filed with the Commission in accordance with the Securities Act. In the event that the Company chooses to redeem less than all of the Notes, selection of the Notes for redemption will be made by the Trustee either: (1) in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed; or, (2) on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. No Notes of a principal amount of E1,000 or less shall be redeemed in part. If a partial redemption is made with the proceeds of a Public Equity Offering, the Trustee will select the Notes only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to Euroclear and Clearstream Luxembourg procedures, if any). Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its last address as it appears in the Register. So long as the Notes are listed on the Luxembourg Stock Exchange and the rules of such exchange so require, notice of redemption shall be published in a daily newspaper of general circulation in Luxembourg (which is expected to be the Luxemberger Wort). On and after the Redemption Date, interest ceases to accrue on Notes or portions of Notes called for redemption so long as the Company has deposited with the Paying Agent funds in satisfaction of the Redemption Price pursuant to the terms of the Indenture, unless the Company defaults in the payment of the Redemption Price. The Trustee may select for redemption portions of the principal amount of the Notes that have denominations equal to E1,000 integral multiples thereof in accordance with Section 3.03 of the Indenture. 6. Redemption for Changes in Withholding Taxes. ------------------------------------------- The Company may redeem the Notes, in whole, but not in part, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, in the event of certain changes in the applicable tax laws or treaties. -6- 7. Repurchase upon Change in Control. --------------------------------- Upon the occurrence of a Change of Control, each Holder shall have the right, subject to the terms and conditions set forth in the Indenture, to require the Company to repurchase its Notes in cash pursuant to the offer described in the Indenture at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, to the date of purchase (the "Change of Control Payment"). A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder at its last address as it appears in the Register and to the Trustee. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Change of Control Offer. Such notice shall state: (1) that the Change of Control Offer is being made pursuant to Section 4.11 of the Indenture and that all Notes tendered will be accepted for payment; (2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than the Change of Control Payment Date); (3) that any Note not tendered will continue to accrue interest if interest is then accruing; (4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day prior to the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and (7) the circumstances and relevant facts regarding such Change of Control. 8. Subordination. ------------- The Notes are subordinated to Senior Debt of the Company, as defined in the Indenture. To the extent provided in the Indenture, Senior Debt of the Company must be paid -7- before the Notes may be paid. The Company agrees, and each Holder by accepting a Note agrees, to the subordination provisions contained in the Indenture and authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose. 9. Denominations; Transfer; Exchange. --------------------------------- The Notes are in registered form without coupons in denominations of E1,000 principal amount and multiples of E1,000 in excess thereof. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. 10. Persons Deemed Owners. --------------------- A Holder shall be treated as the owner of a Note for all purposes. 11. Unclaimed Money. --------------- If money deposited with the Trustee or any Paying Agent for the payment of principal, premium (if any) or interest remains unclaimed for two years, the Trustee and each such Paying Agent shall pay such money back to the Company upon written request of the Company. Following such repayment to the Company, Holders of the Notes entitled to such payment must look to the Company for such payment unless applicable abandoned property law designates another Person and all liability of the Trustee and such Paying Agent shall cease. Other than as set forth in this paragraph, the Indenture does not provide for any prescription period for the payment of principal, premium (if any) and interest on the Notes. 12. Discharge Prior to Redemption or Maturity. ----------------------------------------- If the Company deposits with the Trustee money or Government Obligations sufficient to pay the then outstanding principal of and accrued interest on the Notes to redemption or maturity, the Company and the Guarantors will be discharged from the Indenture, the Notes and the Guarantees except in certain circumstances set forth in the Indenture. 13. Legal Defeasance and Covenant Defeasance. ---------------------------------------- The Company and each Guarantor may be discharged from their obligations under the Indenture, the Notes and the Guarantees except for certain provisions thereof, and the Company may be discharged from its obligations to comply with certain covenants contained therein, in each case upon satisfaction of certain conditions specified in the Indenture. 14. Amendment; Supplement; Waiver. ----------------------------- Subject to certain exceptions, the Indenture, the Notes and the Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in principal -8- amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture, the Notes and the Guarantees to, among other things, cure any ambiguity, defect or inconsistency. Certain modifications will require the consent of each Holder affected thereby. 15. Restrictive Covenants. --------------------- The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries, among other things, to incur additional Indebtedness, make Restricted Payments, use the proceeds from Asset Sales, engage in transactions with Affiliates and, in the case of the Company and the Guarantors, to merge, consolidate or transfer substantially all of its assets. 16. Successor Persons. ----------------- When a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 17. Defaults and Remedies. --------------------- If an Event of Default (other than an Event of Default specified in clause (a)(6) or (a)(7) of Section 6.01 of the Indenture that occurs with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding under the Indenture by notice to the Company and the Trustee, may declare the principal of, premium, if any, and accrued interest, if any, on all Notes to be due and payable. If an Event of Default specified in clause (a)(6) or (a)(7) of Section 6.01 occurs and is continuing with respect to the Company, such amount with respect to all the Notes shall, ipso facto, become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Holders may not enforce the Indenture, the Notes or the Guarantees except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture, the Notes or the Guarantees. Subject to certain limitations, Holders of at least a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power. 18. Trustee Dealings with Company. ----------------------------- Subject to the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from and perform services for the Company or its Affiliates and may otherwise deal with the Company or its Affiliates as if it were not the Trustee. -9- 19. No Recourse Against Others. -------------------------- No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or the Guarantees, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company contained in the Indenture, in any of the Notes or the Guarantees, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator or against any past, present or future partner, shareholder, other equityholder, officer, director, employee, management board member, supervisory board member or controlling person, as such, of the Company, the Guarantors or of any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise. 20. Authentication. -------------- This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note. 21. Abbreviations. ------------- Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act). The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to The Manitowoc Company, Inc., 500 South 16th Street, Manitowoc, Wisconsin 54220. 22. Choice of Law. ------------- The laws of the State of New York shall govern the Indenture and this Note. -10- ASSIGNMENT FORM I or we assign and transfer this Note to - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type name, address and zip code of assignee or transferee) - -------------------------------------------------------------------------------- (Insert Company Registration, Social Security or other identifying number of assignee or transferee) and irrevocably appoint_________________________________________________________ agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. Dated:___________________ Signed:________________________________ (Sign exactly as name appears on the other side of this Note) Signature Guarantee: ----------------------------------------------------------- Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee) -11- OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.11 of the Indenture, check the box: [ ] If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.10 or Section 4.11 of the Indenture, state the amount (in principal amount): E_________. Date: _________________ Your Signature: - -------------------------------------------------------------------------------- (Sign exactly as your name appears on the other side of this Note) Signature Guarantee:____________________________ -12- SCHEDULE A SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS EVIDENCED BY THIS NOTE The initial principal amount of indebtedness evidenced by this Note shall be E_____. The following decreases/increases in the principal amount of indebtedness evidenced by this Note have been made:
Total Principal Decrease in Increase in Amount of Principal Amount Principal Amount Indebtedness Notation Made Date of of Indebtedness of Indebtedness Evidenced by or on Behalf Decrease/Increase Evidenced Evidenced Following Such of Trustee - ----------------- ---------------- ---------------- Decrease/Increase --------------- -----------------
-13- GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC CRANE & SHOVEL SALES CORP., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC WESTERN COMPANY, INC. as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 ENVIRONMENTAL REHAB, INC., as Guarantor By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 WEST-MANITOWOC, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 NORTH CENTRAL CRANE & EXCAVATOR SALES CORP., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC RE-MANUFACTURING, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC MEC, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC CRANES, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC BOOM TRUCKS, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 FEMCO MACHINE COMPANY, INC., as Guarantor By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 SERVEND SALES CORP., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 SERVEND INTERNATIONAL, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MULTIPLEX COMPANY, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC ICE, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC EQUIPMENT WORKS, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC BEVERAGE SYSTEMS, INC., as Guarantor By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 KMT SALES CORP., as Guarantor By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 HARFORD DURACOOL, LLC, as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 KMT REFRIGERATION, INC., as Guarantor By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 DIVERSIFIED REFRIGERATION, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MARINETTE MARINE CORPORATION, as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC MARINE GROUP, LLC, as Guarantor By: The Manitowoc Company, Inc., as sole member and manager By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC FOODSERVICE COMPANIES, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC CRANE COMPANIES, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC CP, INC., as Guarantor By: ----------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 MANITOWOC FP, INC., as Guarantor By: ---------------------------------- Name: Title: GUARANTEE For value received, the undersigned hereby unconditionally guarantees to the Holder of this Note the cash payments in Euros of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal and premium and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note and Articles Eleven and Twelve of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Articles Eleven and Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of each Guarantee shall not be affected by the fact that it may not be affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 9, 2001, between The Manitowoc Company, Inc. and The Bank of New York, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Articles Eleven and Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates. THIS GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE INDENTURE, THE NOTES OR THIS GUARANTEE. Date: ______________, 2001 POTAIN CORPORATION, as Guarantor By: ---------------------------------- Name: Title: EX-4.4 54 manx4-4.txt REGISTRATION RIGHTS AGREEMENT Exhibit 4.4 ================================================================================ REGISTRATION RIGHTS AGREEMENT Dated as of May 9, 2001 By and Among THE MANITOWOC COMPANY, INC. as Issuer, the Guarantors named herein and DEUTSCHE BANK AG LONDON as Initial Purchaser ================================================================================ E175,000,000 10 3/8% SENIOR SUBORDINATED NOTES DUE 2011 TABLE OF CONTENTS ----------------- Page ---- 1. Definitions..........................................................1 2. Exchange Offer.......................................................5 3. Shelf Registration...................................................8 4. Additional Interest..................................................9 5. Registration Procedures.............................................11 6. Registration Expenses...............................................20 7. Indemnification.....................................................21 8. Rule 144 and 144A...................................................25 9. Underwritten Registrations..........................................25 10. Miscellaneous.......................................................25 (a) No Inconsistent Agreements.................................25 (b) Adjustments Affecting Registrable Securities...............26 (c) Amendments and Waivers.....................................26 (d) Notices....................................................26 (e) Successors and Assigns.....................................27 (f) Counterparts...............................................28 (g) Headings...................................................28 (h) Governing Law..............................................28 (i) Severability...............................................28 (j) Securities Held by the Issuer or its Affiliates............28 (k) Third Party Beneficiaries..................................28 (l) Entire Agreement...........................................29 -i- REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (the "Agreement") is dated as of May 9, 2001 by and among The Manitowoc Company, Inc., a Wisconsin corporation (the "Company"), the Guarantors named on the signature pages hereto (the "Guarantors" and, together with the Company, the "Issuers") and Deutsche Banc Alex. Brown (the "Initial Purchaser"). This Agreement is entered into in connection with the Purchase Agreement, dated as of May 4, 2001, by and among the Company, the Guarantors and the Initial Purchaser (the "Purchase Agreement") that provides for the sale by the Company to the Initial Purchaser of E175,000,000 aggregate principal amount of the Company's 10 3/8% Senior Subordinated Notes due 2011 (the "Notes"). The Notes will be guaranteed (the "Guarantees") on a senior subordinated basis by the Guarantors. The Notes and the Guarantees together are herein referred to as the "Securities." In order to induce the Initial Purchaser to enter into the Purchase Agreement, the Issuers have agreed to provide the registration rights set forth in this Agreement for the benefit of the Initial Purchaser and its direct and indirect transferees and assigns. The execution and delivery of this Agreement is a condition to the Initial Purchaser's obligation to purchase the Securities under the Purchase Agreement. The parties hereby agree as follows: 1. Definitions As used in this Agreement, the following terms shall have the following meanings: Additional Interest: See Section 4(a) hereof. Advice: See the last paragraph of Section 5 hereof. Agreement: See the first introductory paragraph hereto. Applicable Period: See Section 2(b) hereof. Closing Date: The Closing Date as defined in the Purchase Agreement. Company: See the first introductory paragraph hereto. -2- Effectiveness Date: The date that is 150 days after the Issue Date; provided, however, that with respect to any Shelf Registration, the Effectiveness Date shall be the 150th day after the delivery of a Shelf Notice as required pursuant to Section 2(c) hereof. Effectiveness Period: See Section 3(a) hereof. Event Date: See Section 4(b) hereof. Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. Exchange Offer: See Section 2(a) hereof. Exchange Registration Statement: See Section 2(a) hereof. Exchange Securities: See Section 2(a) hereof. Filing Date: (A) If no Exchange Offer Registration Statement has been filed by the Issuers pursuant to this Agreement, the 75th day after the Issue Date; and (B) with respect to a Shelf Registration Statement, the 75th day after the delivery of a Shelf Notice as required pursuant to Section 2(c) hereof. Holder: Any holder of a Registrable Security or Registrable Securities. Indemnified Person: See Section 7(c) hereof. Indemnifying Person: See Section 7(c) hereof. Indenture: The Indenture, dated as of May 9, 2001 by and among the Company, the Guarantors and The Bank of New York, as trustee, pursuant to which the Securities are being issued, as amended or supplemented from time to time in accordance with the terms thereof. Initial Purchaser: See the first introductory paragraph hereto. Inspectors: See Section 5(o) hereof. Issue Date: The date on which the original Securities were sold to the Initial Purchaser pursuant to the Purchase Agreement. Issuers: See the introductory paragraph hereto. NASD: See Section 5(t) hereof. -3- Notes: See the second introductory paragraph hereto. Participant: See Section 7(a) hereof. Participating Broker-Dealer: See Section 2(b) hereof. Person: An individual, trustee, corporation, partnership, limited liability company, joint stock company, trust, unincorporated association, union, business association, firm or other legal entity. Private Exchange: See Section 2(b) hereof. Private Exchange Securities: See Section 2(b) hereof. Prospectus: The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to the Prospectus, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. Purchase Agreement: See the second introductory paragraph hereto. Records: See Section 5(o) hereof. Registrable Securities: Each Security upon original issuance of the Securities and at all times subsequent thereto, each Exchange Security (and the related Guarantee) as to which Section 2(c)(v) hereof is applicable upon original issuance and at all times subsequent thereto and each Private Exchange Security (and the related Guarantee) upon original issuance thereof and at all times subsequent thereto, until in the case of any such Security, Exchange Security or Private Exchange Security, as the case may be, the earliest to occur of (i) a Registration Statement (other than, with respect to any Exchange Security as to which Section 2(c)(v) hereof is applicable, the Exchange Registration Statement) covering such Security, Exchange Security or Private Exchange Security (and the related Guarantees), as the case may be, has been declared effective by the SEC and such Security, Exchange Security or Private Exchange Security (and the related Guarantees), as the case may be, has been disposed of in accordance with such effective Registration Statement, (ii) such Security, Exchange Security or Private Exchange Security, as the case may be, is sold in compliance with Rule 144, (iii) such Security has been exchanged for an Exchange Security or Exchange Securities -4- pursuant to an Exchange Offer and is entitled to be resold without complying with the prospectus delivery requirements of the Securities Act and (iv) such Security, Exchange Security or Private Exchange Security (and the related Guarantees), as the case may be, ceases to be outstanding for purposes of the Indenture. Registration Statement: Any registration statement of the Company, including, but not limited to, the Exchange Registration Statement and any registration statement filed in connection with a Shelf Registration, filed with the SEC pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by the SEC providing for offers and sales of securities made in compliance therewith resulting in offers and sales by subsequent holders that are not affiliates of an issuer of such securities being free of the registration and prospectus delivery requirements of the Securities Act. Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144) or regulation hereafter adopted by the SEC. Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. SEC: The Securities and Exchange Commission. Securities: See the second introductory paragraph hereto. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. Shelf Notice: See Section 2(c) hereof. Shelf Registration: See Section 3(a) hereof. TIA: The Trust Indenture Act of 1939, as amended. Trustee: The trustee under the Indenture and, if existent, the trustee under any indenture governing the Exchange Securities and Private Exchange Securities (if any). -5- Underwritten registration or underwritten offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. 2. Exchange Offer (a) The Company and the Guarantors shall file with the SEC, to the extent not prohibited by any applicable law or applicable interpretation of the staff of the SEC, a Registration Statement no later than the Filing Date for an offer to exchange (the "Exchange Offer") any and all of the Registrable Securities (other than the Private Exchange Securities, if any) for a like aggregate principal amount of debt securities of the Company that are identical in all material respects to the Securities (the "Exchange Securities") (and that are entitled to the benefits of the Indenture or a trust indenture that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and that, in either case, has been qualified under the TIA), except that the Exchange Securities (other than Private Exchange Securities, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors agree to use their respective reasonable best efforts to (x) cause the Exchange Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 180th day following the Issue Date. If after such Exchange Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such interference until the Exchange Offer may legally resume. Each Holder who participates in the Exchange Offer will be required to represent in writing that any Exchange Securities received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Securities in violation of the provisions of the Securities Act and that such Holder is not an affiliate of the Company or the Guarantors within the meaning of the Securities Act and is not acting on behalf of any persons or entities who could not truthfully make the foregoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities and Exchange Securities held by Participating Broker-Dealers, -6- and the Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities shall be included in the Exchange Registration Statement. (b) The Company and the Guarantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, that shall contain a summary statement of the positions taken or policies made by the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the Staff of the SEC. Such "Plan of Distribution" section shall also expressly permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Company and the Guarantors shall use their respective reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; provided, however, that such period shall not exceed 180 days after the consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Securities acquired by it and having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchaser simultaneously with the delivery of the Exchange Securities in the Exchange Offer, shall issue and deliver to the Initial Purchaser in exchange (the "Private Exchange") for such Securities held by the Initial Purchaser a like principal amount of debt securities of the Issuers that are identical in all material respects to the Exchange Securities (the "Private Exchange Securities") (and that are issued pursuant to the same indenture as the Exchange Securities), except for the placement of a restrictive legend on such Private Exchange Securities. The Private Exchange Securities shall bear the same CUSIP number as the Exchange Securities. -7- Interest on the Exchange Securities and the Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the Issue Date. In connection with the Exchange Offer, the Company and the Guarantors shall: (1) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents; (2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; (3) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Exchange Offer shall remain open; and (4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company and the Guarantors shall: (1) accept for exchange all Securities properly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange; (2) deliver to the Trustee for cancellation all Securities so accepted for exchange; and (3) cause the Trustee to authenticate and deliver promptly to each Holder of Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Securities of such Holder so accepted for exchange. The Exchange Securities and the Private Exchange Securities may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture, which in either event shall provide that (1) the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Securities shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Notes shall vote and consent together on all matters as one class and that neither the Exchange -8- Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. (c) If, (i) because of any change in law or in currently prevailing interpretations of the Staff of the SEC, the Issuers are not permitted to effect an Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days of the Issue Date (provided that if the Exchange Offer shall be consummated after such 180-day period, then the Company's and the Guarantors' obligation under this clause (ii) arising from the failure of the Exchange Offer to be consummated within such 180-day period shall terminate), (iii) the holder of Private Exchange Securities so requests at any time within 90 days after the consummation of the Private Exchange, (iv) because of any changes in law or in currently prevailing interpretations of the staff of the SEC, a Holder (other than an Initial Purchaser holding Securities acquired directly from the Issuers) is not permitted to participate in the Exchange Offer or (v) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any of the Guarantors within the meaning of the Securities Act), then the Company shall promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and in the case of clauses (i), (ii) and (iv), all Holders, in the case of clause (iii), the Holders of the Private Exchange Securities and in the case of clause (v), the affected Holder, and shall file a Shelf Registration pursuant to Section 3 hereof. 3. Shelf Registration If a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then: (a) Shelf Registration. The Company and the Guarantors shall file with the SEC a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Registrable Securities not exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iv) is applicable (the "Shelf Registration"). The Company and the Guarantors shall use their respective reasonable best efforts to file with the SEC the Shelf Registration on or prior to the applicable Filing Date. The Shelf Registration shall be on Form S-1 or another appropriate form permitting registration of such Registrable Securities for resale by Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Company and the Guarantors shall not permit any securities other than the Registrable Securities to be included in the Shelf Registration. The Company and the Guarantors shall use their respective reasonable best efforts to cause the Shelf Registration to be declared effective under the Securities Act on or prior to the Effectiveness Date and to keep the Shelf Registration continuously effective under -9- the Securities Act until the date that is two years from the Issue Date or such shorter period ending when all Registrable Securities covered by the Shelf Registration have been sold in the manner set forth and as contemplated in the Shelf Registration or cease to be outstanding (the "Effectiveness Period"); provided, however, that the Effectiveness Period in respect of the Shelf Registration shall be extended to the extent required to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the Securities Act and as otherwise provided herein. (b) Withdrawal of Stop Orders. If the Shelf Registration ceases to be effective for any reason at any time during the Effectiveness Period (other than because of the sale of all of the securities registered thereunder), the Issuers shall use all commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof. (c) Supplements and Amendments. The Company and the Guarantors shall promptly supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration, if required by the Securities Act, or if reasonably requested by the Holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement or by any underwriter of such Registrable Securities. 4. Additional Interest (a) The Company, the Guarantors and the Initial Purchaser agree that the Holders of Registrable Securities will suffer damages if the Company and the Guarantors fail to fulfill their respective obligations under Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, the Company and the Guarantors agree to pay, as liquidated damages, additional interest on the Securities ("Additional Interest") under the circumstances and to the extent set forth below (without duplication): (i) if (A) neither the Exchange Registration Statement nor the Shelf Registration has been filed on or prior to the applicable Filing Date or (B) notwithstanding that the Company and the Guarantors have consummated or will consummate the Exchange Offer, the Company and the Guarantors are required to file a Shelf Registration and such Shelf Registration is not filed on or prior to the Filing Date applicable thereto, then, commencing on the day after any such Filing Date, Additional Interest shall accrue on the Securities over and above the stated interest at a rate of 0.50% per annum for the first 90 days immediately following the Filing Date, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; -10- (ii) if (A) neither the Exchange Registration Statement nor the Initial Shelf Registration is declared effective by the SEC on or prior to the relevant Effectiveness Date or (B) notwithstanding that the Company and the Guarantors have consummated or will consummate the Exchange Offer, the Company and the Guarantors are required to file a Shelf Registration and such Shelf Registration is not declared effective by the SEC on or prior to the Effectiveness Date in respect of such Shelf Registration, then, commencing on the day after such Effectiveness Date, Additional Interest shall accrue on the Securities included or that should have been included in such Registration Statement over and above the stated interest at a rate of 0.50% per annum for the first 90 days immediately following the Effectiveness Date, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; and (iii) if either (A) the Company and the Guarantors have not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the 180th day after the Issue Date or (B) if applicable, a Shelf Registration has been declared effective and such Shelf Registration ceases to be effective at any time during the Effectiveness Period, then Additional Interest shall accrue on the Securities (over and above any interest otherwise payable on the Securities) at a rate of 0.50% per annum on (x) the 181st day after the Issue Date, in the case of (A) above, or (y) the day such Shelf Registration ceases to be effective, in the case of (B) above, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each such subsequent 90-day period; provided, however, that the Additional Interest rate on the Securities may not accrue under more than one of the foregoing clauses (i) through (iii) of this Section 4(a) at the same time and at no time shall the aggregate amount of Additional Interest accruing exceed at any one time in the aggregate 2.0% per annum; and provided, further, that (1) upon the filing of the Exchange Registration Statement or a Shelf Registration (in the case of clause (i) of this Section 4(a)), (2) upon the effectiveness of the Exchange Registration Statement or the Shelf Registration (in the case of clause (ii) of this Section 4(a)), or (3) upon the exchange of Exchange Securities for all Securities tendered (in the case of clause (iii)(A) of this Section 4(a)), or upon the effectiveness of the applicable Shelf Registration that had ceased to remain effective (in the case of (iii)(B) of this Section 4(a)), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue. (b) The Company and the Guarantors shall notify the Trustee within one business day after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an "Event Date"). Any amounts of Additional -11- Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable in cash semi-annually on each May 15 and November 15 (to the holders of record on the May 1 and November 1 immediately preceding such dates), commencing with the first such date occurring after any such Additional Interest commences to accrue. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Registrable Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year consisting of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed) and the denominator of which is 360. 5. Registration Procedures In connection with the filing of any Registration Statement pursuant to Sections 2 or 3 hereof, the Company and the Guarantors shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company and the Guarantors hereunder, the Company and the Guarantors shall: (a) Prepare and file with the SEC prior to the Filing Date, a Registration Statement or Registration Statements as prescribed by Sections 2 or 3 hereof, and use its reasonable best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, that, if (1) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Company and the Guarantors shall furnish to and afford the Holders of the Registrable Securities covered by such Registration Statement or each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least three business days prior to such filing). The Company and the Guarantors shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement, or any such Participating Broker-Dealer, as the case may be, or their counsel, or the managing underwriters, if any, shall reasonably object on a timely basis. -12- (b) Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration or Exchange Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be; cause the related Prospectus to be supplemented by any prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus; the Company and the Guarantors shall be deemed not to have used their respective reasonable best efforts to keep a Registration Statement effective during the Applicable Period if each of the Company and the Guarantors voluntarily takes any action that would result in selling Holders of the Registrable Securities covered thereby or Participating Broker-Dealers seeking to sell Exchange Securities not being able to sell such Registrable Securities or such Exchange Securities during that period, unless such action is required by applicable law or unless the Company and the Guarantors comply in all material respects with this Agreement, including without limitation, the provisions of paragraph 5(k) hereof and the last paragraph of this Section 5. (c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, the Company shall notify the selling Holders of Registrable Securities, or each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, promptly (but in any event within two business days) and confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, at the sole expense of the Issuers, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered -13- in connection with sales of the Registrable Securities or resales of Exchange Securities by Participating Broker-Dealers the representations and warranties of the Issuers contained in any agreement (including any underwriting agreement), contemplated by Section 5(n) hereof cease to be true and correct, (iv) of the receipt by the Issuers of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities or the Exchange Securities to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation or written threat of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respects or that requires the making of any material changes in or amendments or supplements to such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) of the Issuers' determination that a post-effective amendment to a Registration Statement would be appropriate. (d) Use their respective reasonable best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities or the Exchange Securities for sale in any jurisdiction and, if any such order is issued, to use their reasonable best efforts to obtain the withdrawal of any such order at the earliest possible moment. (e) If a Shelf Registration is filed pursuant to Section 3 and if requested by the managing underwriter or underwriters, if any, or the Holders of a majority in aggregate principal amount of the Registrable Securities being sold in connection with an underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, such Holders or counsel for any of them determine is reasonably necessary to be included therein, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Issuers have received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment and (iii) supplement or make amendments to such Registration Statement; provided, however, that the Company and the Guarantors -14- shall not be required to take any action pursuant to this Section 5(e) that would, in the opinion of counsel for the Company and the Guarantors, violate applicable law. (f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, furnish to each selling Holder of Registrable Securities and to each such Participating Broker-Dealer who so requests and to their respective counsel and each managing underwriter, if any, at the sole expense of the Issuers, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits. (g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, deliver to each selling Holder of Registrable Securities, or each such Participating Broker-Dealer, as the case may be, their respective counsel and the underwriters, if any, at the sole expense of the Issuers, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 5, the Company and the Guarantors hereby consent to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities or each such Participating Broker-Dealer, as the case may be, and the underwriters or agents, if any, and dealers, if any, in connection with the offering and sale of the Registrable Securities covered by, or the sale by Participating Broker-Dealers of the Exchange Securities pursuant to, such Prospectus and any amendment or supplement thereto. (h) Prior to any public offering of Registrable Securities or Exchange Securities or any delivery of a Prospectus contained in the Exchange Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, to use their reasonable best efforts to register or qualify and to cooperate with the selling Holders of Registrable Securities or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions -15- within the United States as any selling Holder, Participating Broker-Dealer or the managing underwriter or underwriters reasonably request in writing; provided, however, that where Exchange Securities held by Participating Broker-Dealers or Registrable Securities are offered other than through an underwritten offering, the Company and the Guarantors agree to cause their counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 5(h); use their reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Exchange Securities held by Participating Broker-Dealers or the Registrable Securities covered by the applicable Registration Statement; provided, however, that none of the Company or the Guarantors shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in any such jurisdiction where it is not then so subject. (i) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate with the selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with Euroclear Bank S.A./N.V., as operator of the Euroclear System, and Clearstream Banking societe anonyme ("Euroclear and Clearstream"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request. (j) Use their respective reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Holders thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case the Company and the Guarantors will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals. (k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, -16- as promptly as practicable, prepare and (subject to Section 5(a) hereof) file with the SEC, at the Issuers' sole expense, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder or to the purchasers of the Exchange Securities to whom such Prospectus will be delivered by a Participating Broker-Dealer, any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (l) Use its respective reasonable best efforts to cause the Registrable Securities covered by a Registration Statement or the Exchange Securities, as the case may be, to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement or the Exchange Securities, as the case may be, or the managing underwriter or underwriters, if any. (m) Prior to the effective date of the first Registration Statement relating to the Registrable Securities, (i) provide the Trustee with certificates for the Registrable Securities or Exchange Securities, as the case may be, in a form eligible for deposit with Euroclear and Clearstream and (ii) provide a CUSIP number for the Registrable Securities or Exchange Securities, as the case may be. (n) In connection with any underwritten offering of Registrable Securities pursuant to a Shelf Registration, enter into an underwriting agreement as is customary in underwritten offerings of debt securities similar to the Securities and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities and, in such connection, (i) make such representations and warranties to, and covenants with, the underwriters with respect to the business of the Issuers and their subsidiaries (including any acquired business, properties or entity, if applicable) and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings of debt securities similar to the Securities, and confirm the same in writing if and when requested; (ii) obtain the written opinion of counsel to the Issuers and written updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings of debt similar to the Securities and such other matters as may be reasonably requested by the managing underwriter or underwriters; -17- (iii) obtain "cold comfort" letters and updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Issuers (and, if necessary, any other independent certified public accountants of any subsidiary of the Issuers or of any business acquired by the Issuers for which financial statements and financial data are, or are required to be, included or incorporated by reference in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings of debt securities similar to the Securities and such other matters as reasonably requested by the managing underwriter or underwriters; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 7 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. (o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, upon reasonable advance notice make available for inspection by any selling Holder of such Registrable Securities being sold, or each such Participating Broker-Dealer, as the case may be, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney, accountant or other agent retained by any such selling Holder or each such Participating Broker-Dealer, as the case may be, or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours without interfering in the orderly business of the Company or Guarantors, all financial and other relevant records, pertinent corporate documents and instruments of the Issuers and their subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the respective officers, directors and employees of the Issuers and their subsidiaries to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. Any such access granted to the Inspectors under this Section 5(o) shall be subject to the prior receipt by the Issuers or written undertakings, in form and substance reaasonably satisfactory to the Issuers, to preserve the confidentiality of any information deemed by the Issuers to be confidential. Records that the Issuers determine, in good faith, to be confidential -18- and any Records that they notify the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the Issuers based upon advice of counsel determine that disclosure of such Records is necessary to avoid or correct a material misstatement or omission in such Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) after giving reasonable prior notice to the Company, disclosure of such information is, in the opinion of counsel for any Inspector, necessary or advisable in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Inspector and arising out of, based upon, relating to or involving this Agreement or any transactions contemplated hereby or arising hereunder or (iv) the information in such Records has been made generally available to the public. Each selling Holder of such Registrable Securities and each such Participating Broker-Dealer will be required to agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company unless and until such information is generally available to the public. Each selling Holder of such Registrable Securities and each such Participating Broker-Dealer will be required to further agree that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company to undertake appropriate action to prevent disclosure of the Records deemed confidential at the Issuers' sole expense. (p) Provide an indenture trustee for the Registrable Securities or the Exchange Securities, as the case may be, and cause the Indenture or the trust indenture provided for in Section 2(a) hereof, as the case may be, to be qualified under the TIA not later than the effective date of the Exchange Offer or the first Registration Statement relating to the Registrable Securities; and in connection therewith, cooperate with the trustee under any such indenture and the Holders of the Registrable Securities, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its reasonable best efforts to cause such trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner. (q) Comply in all material respects with all applicable rules and regulations of the SEC and make generally available to its securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or -19- reasonable best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Issuers after the effective date of a Registration Statement, which statements shall cover said 12-month periods. (r) Upon consummation of an Exchange Offer or a Private Exchange, obtain an opinion of counsel to the Issuers, who may, at the Issuers' election, be internal counsel to the Issuers, in a form customary for underwritten transactions, addressed to the Trustee for the benefit of all Holders of Registrable Securities participating in the Exchange Offer or the Private Exchange, as the case may be, that the Exchange Securities or Private Exchange Securities, as the case may be, and the related indenture constitute legal, valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with its respective terms, subject to customary exceptions and qualifications. (s) If an Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Registrable Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or cause to be marked, on such Registrable Securities that such Registrable Securities are being cancelled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall such Registrable Securities be marked as paid or otherwise satisfied. (t) Cooperate with each seller of Registrable Securities covered by any Registration Statement and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD"). (u) Use their respective reasonable best efforts to take all other steps necessary or advisable to effect the registration of the Registrable Securities covered by a Registration Statement contemplated hereby. The Company and the Guarantors may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company and the Guarantors such information regarding such seller and the distribution of such Registrable Securities as the Company and the Guarantors may, from time to time, reasonably request. The Company and the Guarantors may exclude from such registration the Registrable Securities of any seller who unreasonably fails to furnish such information within a reasonable time after receiving such request and in such event shall have no further obligation under this -20- Agreement (including, without limitation, obligations under Section 4 hereof) with respect to such seller or any subsequent holder of such Registrable Securities. Each seller as to which any Shelf Registration is being effected agrees to furnish promptly to the Company and the Guarantors all information required to be disclosed in order to make the information previously furnished to the Company and the Guarantors by such seller not materially misleading. Each Holder of Registrable Securities and each Participating Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, that, upon actual receipt of any notice from the Company of the happening of any event of the kind described in Sections 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus or Exchange Securities to be sold by such Holder or Participating Broker-Dealer, as the case may be, until such Holder's or Participating Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto. During any such discontinuance, no Additional Interest shall accrue or otherwise be payable on the Registrable Securities. In the event that the Company shall give any such notice, each of the Effectiveness Period and the Applicable Period shall be extended by the number of days during such periods from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, shall have received (x) the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice. 6. Registration Expenses (a) All fees and expenses incident to the performance of or compliance with this Agreement by the Company and the Guarantors shall be borne by the Company and the Guarantors whether or not the Exchange Offer or a Shelf Registration is filed or becomes effective, including, without limitation, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with Blue Sky qualifications of the Registrable Securities or Exchange Securities and determination of the eligibility of the Registrable Securities or Exchange Securities for investment under the laws of such jurisdictions (x) where the holders of Registrable Securities are located, in the case of the Exchange Securities, or (y) as provided in Section 5(h) hereof, in the case of Registrable Securities or Exchange Securities to be sold by a Participating -21- Broker-Dealer during the Applicable Period)), (ii) printing expenses, including, without limitation, expenses of printing certificates for Registrable Securities or Exchange Securities in a form eligible for deposit with Euroclear and Clearstream and of printing prospectuses if the printing of prospectuses is requested by the managing underwriter or underwriters, if any, by the Holders of a majority in aggregate principal amount of the Registrable Securities included in any Registration Statement or sold by any Participating Broker-Dealer, as the case may be, (iii) reasonable messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company and reasonable fees and disbursements of special counsel for the sellers of Registrable Securities (subject to the provisions of Section 6(b) hereof), (v) fees and disbursements of all independent certified public accountants referred to in Section 5(n)(iii) hereof (including, without limitation, the expenses of any special audit and "cold comfort" letters required by or incident to such performance), (vi) rating agency fees, if any, and any fees associated with making the Registrable Securities or Exchange Securities eligible for trading through Euroclear and Clearstream, (vii) Securities Act liability insurance, if the Company desires such insurance, (viii) fees and expenses of all other Persons retained by the Company, (ix) internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees of the Company performing legal or accounting duties), (x) the expense of any annual audit, (xi) the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange, if applicable, and (xii) the expenses relating to printing, word processing and distributing of all Registration Statements, underwriting agreements, securities sales agreements, indentures and any other documents necessary to comply with this Agreement. (b) The Company and the Guarantors shall reimburse the Holders of the Registrable Securities being registered in a Shelf Registration for the reasonable fees and disbursements of not more than one counsel chosen by the Holders of a majority in aggregate principal amount of the Registrable Securities to be included in such Registration Statement. 7. Indemnification (a) Each of the Company and the Guarantors agrees to indemnify and hold harmless each Holder of Registrable Securities offered pursuant to a Shelf Registration Statement and each Participating Broker-Dealer selling Exchange Securities during the Applicable Period, the officers and directors of each such Person or its affiliates, and each other Person, if any, who controls any such Person or its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from and against any and all losses, claims, damages and liabilities (including, without limitation, the reasonable legal fees and other expenses actually incurred in connection with any suit, action or proceeding or any claim asserted) caused by, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement pursuant to which the offering of such Registrable Securities or -22- Exchange Securities, as the case may be, is registered (or any amendment thereto) or related Prospectus (or any amendments or supplements thereto) or any related preliminary prospectus, or caused by, arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the Company or the Guarantors will be required to indemnify a Participant if (i) such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Participant furnished to the Company in writing by or on behalf of such Participant expressly for use therein or (ii) if such Participant sold to the person asserting the claim the Registrable Notes or Exchange Securities that are the subject of such claim and such untrue statement or omission or alleged untrue statement or omission was contained or made in any preliminary prospectus and corrected in the Prospectus or any amendment or supplement thereto and the Prospectus does not contain any other untrue statement or omission or alleged untrue statement or omission of a material fact that was the subject matter of the related proceeding and it is established by the Company in the related proceeding that such Participant failed to deliver or provide a copy of the Prospectus (as amended or supplemented) to such Person with or prior to the confirmation of the sale of such Registrable Notes or Exchange Notes sold to such Person if required by applicable law, unless such failure to deliver or provide a copy of the Prospectus (as amended or supplemented) was a result of noncompliance by the Company with Section 5 of this Agreement. (b) Each Participant agrees, severally and not jointly, to indemnify and hold harmless the Company and each of the Guarantors, the Company's directors and officers, each Guarantor's directors and officers and each Person who controls the Company and the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to each Participant, but only (i) with reference to information relating to such Participant furnished to the Company in writing by or on behalf of such Participant expressly for use in any Registration Statement or Prospectus, any amendment or supplement thereto or any preliminary prospectus or (ii) with respect to any untrue statement or representation made by such Participant in writing to the Company. The liability of any Participant under this paragraph shall in no event exceed the proceeds received by such Participant from sales of Registrable Securities or Exchange Securities giving rise to such obligations. (c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such Person (the "Indemnified Person") shall promptly notify the Person against whom such indemnity may be sought (the "Indemnifying Person") in writing, and the Indemnifying -23- Person, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others the Indemnifying Person may reasonably designate in such proceeding and shall pay the reasonable fees and expenses actually incurred by such counsel related to such proceeding; provided, however, that the failure to so notify the Indemnifying Person shall not relieve it of any obligation or liability that it may have hereunder or otherwise (unless and only to the extent that such failure directly results in the loss or compromise of any material rights or defenses by the Indemnifying Person and the Indemnifying Person was not otherwise aware of such action or claim). In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed in writing to the contrary, (ii) the Indemnifying Person shall have failed within a reasonable period of time to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that, unless there exists a conflict among Indemnified Persons, the Indemnifying Person shall not, in connection with any one such proceeding or separate but substantially similar related proceeding in the same jurisdiction arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed promptly as they are incurred. Any such separate firm for the Participants and such control Persons of Participants shall be designated in writing by Participants who sold a majority in interest of Registrable Securities and Exchange Securities sold by all such Participants and any such separate firm for the Company, its directors, its officers and such control Persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreement, the Indemnifying Person agrees to indemnify and hold harmless each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the prior written consent of the Indemnified Person (which consent shall not be unreasonably withheld or delayed), effect any settlement or compromise of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party, and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional written release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of any Indemnified Person. -24- (d) If the indemnification provided for in the first and second paragraphs of this Section 7 is for any reason unavailable to, or insufficient to hold harmless, an Indemnified Person in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying Person or Persons on the one hand and the Indemnified Person or Persons on the other in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuers on the one hand or such Participant or such other Indemnified Person, as the case may be, on the other, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, and any other equitable considerations appropriate in the circumstances. (e) The parties agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Participants were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses actually incurred by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall a Participant be required to contribute any amount in excess of the amount by which proceeds received by such Participant from sales of Registrable Securities or Exchange Securities, as the case may be, exceeds the amount of any damages that such Participant has otherwise been required to pay or has paid by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (f) The indemnity and contribution agreements contained in this Section 7 will be in addition to any liability that the Indemnifying Persons may otherwise have to the Indemnified Persons referred to above. -25- 8. Rule 144 and 144A The Company and the Guarantors covenant that they will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in a timely manner in accordance with the requirements of the Securities Act and the Exchange Act and, if at any time the Company and the Guarantors not required to file such reports, they will, upon the request of any Holder of Registrable Securities, make publicly available annual reports and such information, documents and other reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The Company and the Guarantors further covenants for so long as any Registrable Securities remain outstanding, to make available to any Holder or beneficial owner of Registrable Securities in connection with any sale thereof and any prospective purchaser of such Registrable Securities from such Holder or beneficial owner the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Registrable Securities pursuant to Rule 144A. 9. Underwritten Registrations If any of the Registrable Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Holders of a majority in aggregate principal amount of such Registrable Securities included in such offering and reasonably acceptable to the Company and the Guarantors. No Holder of Registrable Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder's Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. 10. Miscellaneous (a) No Inconsistent Agreements. The Issuers have not entered into, as of the date hereof, and shall not, after the date of this Agreement, enter into any agreement with respect to any of the Company's securities that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof. The Issuers have not entered and will not enter into any agreement with respect to any of the Company's securities that will grant to any Person piggy-back registration rights with respect to a Registration Statement. -26 (b) Adjustments Affecting Registrable Securities. The Issuers shall not, directly or indirectly, take any action with respect to the Registrable Securities as a class that would adversely affect the ability of the Holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement. (c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, otherwise than with the prior written consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights of other Holders of Registrable Securities may be given by Holders of at least a majority in aggregate principal amount of the Registrable Securities being sold by such Holders pursuant to such Registration Statement; provided, however, that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. (d) Notices. All notices and other communications (including without limitation any notices or other communications to the Trustee) provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, next-day air courier or facsimile: 1. if to a Holder of the Registrable Securities or any Participating Broker-Dealer, at the most current address of such Holder or Participating Broker-Dealer, as the case may be, set forth on the records of the registrar under the Indenture, with a copy in like manner to the Initial Purchaser as follows: DEUTSCHE BANK AG LONDON 1 Great Winchester Street London EC2N 2DB, UK Facsimile No.: 44 207-547-2704 Attention: -27- with a copy to: Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 Facsimile No.: (212) 269-5420 Attention: William M. Hartnett, Esq. 2. if to the Initial Purchaser, at the addresses specified in Section 10(d)(1) 3. if to the Issuer, at the address as follows: THE MANITOWOC COMPANY, INC. 500 South 16th Street Manitowoc, WI 54220 Facsimile No.: (920) 683-8123 Attention: Maurice D. Jones with a copy to: Foley & Lardner 777 East Wisconsin Avenue Milwaukee, WI 53202 Facsimile No.: (414) 297-4900 Attention: Jay O. Rothman All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; one business day after being timely delivered to a next-day air courier; and when receipt is acknowledged by the addressee, if sent by facsimile. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address and in the manner specified in such Indenture. (e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign holds Registrable Securities. -28- (f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. (i) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. (j) Securities Held by the Issuers or their Affiliates. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Issuers or their affiliates (as such term is defined in Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. (k) Third Party Beneficiaries. Holders of Registrable Securities and Participating Broker-Dealers are intended third party beneficiaries of this Agreement and this Agreement may be enforced by such Persons. (l) Entire Agreement. This Agreement, together with the Purchase Agreement and the Indenture, is intended by the parties as a final and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein and any and all prior oral or written agreements, representations, -29- or warranties, contracts, understandings, correspondence, conversations and memoranda between the Initial Purchaser on the one hand and the Issuers on the other, or between or among any agents, representatives, parents, subsidiaries, affiliates, predecessors in interest or successors in interest with respect to the subject matter hereof and thereof are merged herein and replaced hereby. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. THE MANITOWOC COMPANY, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC CRANE COMPANIES, INC. By: /s/ James Walden ------------------------------------ Name: James Walden Title: President MANITOWOC MARINE GROUP, LLC By: The Manitowoc Company, Inc., as sole member and manager By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC FOODSERVICE COMPANIES, INC. By: /s/ James Walden ------------------------------------ Name: James Walden Title: President S-1 MANITOWOC WESTERN COMPANY, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC BOOM TRUCKS, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC RE-MANUFACTURING, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC CRANES, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary S-2 WEST-MANITOWOC, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary FEMCO MACHINE COMPANY, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC CP, INC. By: /s/ James Walden ------------------------------------ Name: James Walden Title: President KMT REFRIGERATION, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary S-3 HARFORD DURACOOL, LLC By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary DIVERSIFIED REFRIGERATION, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary SERVEND INTERNATIONAL, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary SERVEND SALES CORP. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary S-4 MANITOWOC BEVERAGE SYSTEMS, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC ICE, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC EQUIPMENT WORKS, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC FP, INC. By: /s/ James Walden ------------------------------------ Name: James Walden Title: President S-5 KMT SALES CORP. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MULTIPLEX COMPANY, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary NORTH CENTRAL CRANE & EXCAVATOR SALES CORP. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary ENVIRONMENTAL REHAB, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary S-6 MANITOWOC CRANE & SHOVEL SALES CORP. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MANITOWOC MEC, INC. By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary MARINETTE MARINE CORPORATION By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary S-7 POTAIN CORPORATION By: /s/ Maurice D. Jones ------------------------------------ Name: Maurice D. Jones Title: General Counsel and Secretary S-8 DEUTSCHE BANK AG LONDON, as Initial Purchaser By: /s/ Brian Bassett ------------------------------------ Name: Brian Bassett Title: Director S-9 EX-5.1 55 manx5-1.txt OPINION OF FOLEY & LARDNER Exhibit 5.1 FOLEY & LARDNER ATTORNEYS AT LAW BRUSSELS FIRSTAR CENTER ORLANDO CHICAGO 777 EAST WISCONSIN AVENUE SACRAMENTO DENVER MILWAUKEE, WISCONSIN 53202-5367 SAN DIEGO DETROIT TELEPHONE (414) 271-2400 SAN FRANCISCO JACKSONVILLE FACSIMILE (414) 297-4900 TALLAHASSEE LOS ANGELES TAMPA MADISON WASHINGTON, D.C. MILWAUKEE WEST PALM BEACH July 12, 2001 The Manitowoc Company, Inc. 500 South 16th Street Manitowoc, Wisconsin 54221 Ladies and Gentlemen: We have acted as counsel for The Manitowoc Company, Inc., a Wisconsin corporation (the "Company"), and each of the guarantors listed on Exhibit A hereto (the "Guarantors"), in connection with the preparation of a Registration Statement on Form S-4, including the Prospectus constituting a part thereof (the "Registration Statement"), to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to an offer to exchange (the "Exchange Offer") the Company's new 10 3/8% Senior Subordinated Notes due 2011 (the "New Notes") for an equal principal amount of the Company's outstanding 10 3/8% Senior Subordinated Notes due 2011 (the "Old Notes"). The Old Notes are, and the New Notes will be, fully and unconditionally guaranteed (the "Guarantees") by the Guarantors. The Old Notes and the related Guarantees were issued, and the New Notes and the related Guarantees will be issued, pursuant to an Indenture, dated as of May 9, 2001 (the "Indenture"), among the Company, the Guarantors and The Bank of New York, as Trustee (the "Trustee"). In connection with our opinion, we have examined: (a) the Registration Statement, including the Prospectus; (b) the Indenture (included as Exhibit 4.2 to the Registration Statement); (c) the form of the New Notes and the related Guarantees (included as Exhibit 4.3 to the Registration Statement); and (d) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion. In our examination of the above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. Foley & Lardner The Manitowoc Company, Inc. July 12, 2001 Page 2 Based upon the foregoing, assuming that the Indenture has been duly authorized, executed and delivered by, and represents the valid and binding obligation of, the Trustee, and when the Registration Statement, including any amendments thereto, shall have become effective under the Securities Act and the Indenture shall have been duly qualified under the Trust Indenture Act of 1939, as amended, and having regard for such legal considerations as we deem relevant, we are of the opinion that: 1. The New Notes, when duly executed and delivered by or on behalf of the Company in the form contemplated by the Indenture upon the terms set forth in the Exchange Offer and authenticated by the Trustee, will be legally issued and valid and binding obligations of the Company enforceable in accordance with their terms; and 2. The Guarantees related to the New Notes, when duly executed and delivered by or on behalf of the Guarantors in the form contemplated by the Indenture upon the terms set forth in the Exchange Offer, will be legally issued and valid and binding obligations of the Guarantors enforceable in accordance with their terms; except, in each case, as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other comparable laws affecting the enforcement of creditors' rights generally or the application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). We are qualified to practice law in the State of Wisconsin and we do not purport to be experts on the law other than that of the State of Wisconsin and the Federal laws of the United States of America. We express no opinion and make no representations with respect to the laws of any other jurisdiction. We hereby consent to the reference to our firm under the caption "Legal Matters" in the Prospectus which is filed as part of the Registration Statement, and to the filing of this opinion as an exhibit to such Registration Statement. In giving this consent, we do not admit that we are "experts" within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act. Very truly yours, /s/ Foley & Lardner FOLEY & LARDNER Foley & Lardner The Manitowoc Company, Inc. July 12, 2001 Page 3 EXHIBIT A GUARANTORS Marinette Marine Corporation Manitowoc Foodservice Companies, Inc. Manitowoc Crane Companies, Inc. Manitowoc FP, Inc. Manitowoc CP, Inc. Diversified Refrigeration, Inc. KMT Refrigeration, Inc. Harford Duracool, LLC KMT Sales Corp. Manitowoc Beverage Systems, Inc. Manitowoc Equipment Works, Inc. Manitowoc Ice, Inc. Multiplex Company, Inc. SerVend International, Inc. SerVend Sales Corp. Femco Machine Company, Inc. Manitowoc Boom Trucks, Inc. Manitowoc Cranes, Inc. Manitowoc MEC, Inc. Manitowoc Re-Manufacturing, Inc. North Central Crane & Excavator Sales Corp. West-Manitowoc, Inc. Environmental Rehab, Inc. Manitowoc Crane & Shovel Sales Corp. Manitowoc Western Company Manitowoc Marine Group, LLC Potain Corporation EX-12.1 56 manx12-1.txt STATEMENT RE COMPUTATION OF EARNINGS Exhibit 12.1 The Manitowoc Company, Inc. Computation of Ratio of Earnings to Fixed Charges (Thousands of dollars, except ratios)
For the Year Ended December 31, -------------------------------------------------------------------------------------------- 1996 1997 1998 1999 2000 Pro Forma 2000 ------------ ----------- ------------ ------------ ----------- ------------- Earnings: Earnings before income on taxes $42,506 $57,817 $81,412 $106,006 $96,120 $83,089 Add-Fixed charges 10,588 7,360 10,690 12,406 17,352 52,878 ------------ ----------- ------------ ------------ ----------- ------------- Earnings available $53,094 $65,177 $92,102 $118,412 $113,472 $135,967 for fixed charges ============ =========== ============ ============ =========== ============= Fixed charges: Interest expense(1) 9,097 6,230 9,741 10,790 14,508 49,502 Interest portion of rental expense(2) 1,491 1,130 949 1,616 2,844 3,376 ------------ ----------- ------------ ------------ ----------- ------------- Total fixed charges $10,588 $7,360 $10,690 $12,406 $17,352 $52,878 ============ =========== ============ ============ =========== ============= Ratio of earnings to fixed charges 5.0 8.9 8.6 9.5 6.5 2.6 ============ =========== ============ ============ =========== ============= For the Three Months Ended March 31, -------------------------------------------- 2000 2001 Pro Forma 2001 ------------ ------------ ------------ Earnings: Earnings before income on taxes $23,861 $15,818 Add-Fixed charges 3,222 4,915 ------------ ------------ ------------ Earnings available $27,083 $20,733 $-- for fixed charges ============ ============ ============ Fixed charges: Interest expense(1) 2,511 4,096 Interest portion of rental expense(2) 711 819 ------------ ------------ ------------ Total fixed charges $3,222 $4,915 $-- ============ ============ ============ Ratio of earnings to fixed charges 8.4 4.2 ============ ============ ============ (1) Interest expense includes amortization of deferred financing costs. (2) 33% of rental expense is deemed representative of the interest factor.
EX-23.1 57 manx23-1.txt CONSENT OF PRICEWATERHOUSECOOPERS Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT We hereby consent to the use in this Registration Statement on Form S-4 of The Manitowoc Company, Inc. of our report dated December 31, 2000, except for information in Note 15, for which the date is March 4, 2001, relating to the financial statements and financial statement schedule of The Manitowoc Company, Inc. which appears in such Registration Statement. We also consent to the references to us under the headings "Experts" in such Registration Statement. PricewaterhouseCoopers LLP Milwaukee, Wisconsin July 12, 2001 EX-24.1 58 manx24-1.txt POWERS OF ATTORNEY Exhibit 24.1 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I Dean H. Anderson hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ Dean H. Anderson ---------------------- Dean H. Anderson POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I Virgis W. Colbert hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ Virgis W. Colbert ---------------------- Virgis W. Colbert POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I Daniel W. Duval hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ Daniel W. Duval ---------------------- Daniel W. Duval POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I James P. McCann hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ James P. McCann --------------------- James P. McCann POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I James L. Packard hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ James L. Packard ---------------------- James L. Packard POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I Gilbert F. Rankin, Jr. hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ Gilbert F. Rankin, Jr. ------------------------------ Gilbert F. Rankin, Jr. POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I Robert C. Stift hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ Robert C. Stift ------------------------------ Robert C. Stift POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, That I Robert S. Throop hereby constitute and appoint Terry D. Growcock, Glen E. Tellock and Maurice D. Jones, and each of them individually, my true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for me and in my name, place and stead, in any and all capacities, to sign my name as a director of The Manitowoc Company, Inc. (the "Company") to the Registration Statement on Form S-4, and any amendments (including post-effective amendments) or supplements thereto, relating to an offer to exchange substantially identical unsecured debt securities and related guarantees that are registered under the Securities Act of 1933, as amended, for up to E175,000,000 aggregate principal amount of unsecured debt securities to be issued by the Company, after the consummation of the private placement of such debt securities, and to file said Registration Statement, and any amendment (including any post-effective amendment) or supplement thereto, with the Securities and Exchange Commission in connection with the registration of the unsecured debt securities and related guarantees under the Securities Act of 1933, as amended. I hereby ratify and confirm all that said attorneys-in-fact and agents, or each of them, have done or shall lawfully do by virtue of this Power of Attorney. WITNESS my hand this 11th day of June, 2001. /s/ Robert S. Throop ---------------------- Robert S. Throop EX-25.1 59 manx25-1.txt FORM T-1 Exhibit 25.1 ================================================================================ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TURSTEE PURSUANT TO SECTION 305 (b)(2) ------------------------- The BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code) ------------------------- The Manitowoc Company, Inc. (Exact name of obligor as specified in its charter) Wisconsin 39-0448110 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 500 South 16th. Street Manitowoc, Wisconsin 54221 (Address of principal executive offices) (Zip code) ------------------------- 10 3/8% Senior Subordinated Notes due 2011 (Title of the indenture securities) =============================================================================== 1. General information. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. - -------------------------------------------------------------------------------- Name Address - -------------------------------------------------------------------------------- Superintendent of Banks of the State of 2 Rector Street, New York, N.Y. New York 10006, and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005 (b) Whether it is authorized to exercise corporate trust powers. Yes. 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. 16. List of Exhibits. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 Under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibit 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to From T-1 filed with Registration Statement No. 33-29637.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 14th. day of June, 2001. THE BANK OF NEW YORK By: /s/ Luis Perez . ----------------------------------- Name: Luis Perez Title: Assistant Vice President -------------------- Consolidated Report of Condition of THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries. a member of the Federal Reserve System, at the close of business December 31, 2000 published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS In Thousands Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin......................... $3,083,720 Interest-bearing balances.................................................. 4,949,333 Securities: Held-to-maturity securities................................................ 740,315 Available-for-sale securities.............................................. 5,328,981 Federal funds sold and Securities purchased under agreement to resell...... 5,695,708 Loans and lease financing receivables: Loans and leases, net of unearned income................................... 36,590,456 LESS: Allowance for loan and leases losses................................ 598,536 LESS: Allocated transfer risk reserve..................................... 12,575 Loans and leases, net of unearned income, allowance and reserve............ 35,979,345 Trading Assets............................................................. 11,912,448 Premises and fixed assets (including capitalized leases)................... 763,241 Other real estate owned.................................................... 2,925 Investments in unconsolidated subsidiaries and associated companies........ 183,836 Customers' liability to this bank on acceptances outstanding............... 424,303 Intangible assets.......................................................... 1,378,477 Other assets............................................................... 3,823,797 --------------- Total assets............................................................... $74,266,429 =============== LIABILITIES Deposits: In domestic offices........................................................ $28,328,548 Noninterest-bearing........................................................ 12,637,384 Interest-bearing........................................................... 15,691,164 In foreign offices. Edge and Agreement subsidiaries, and IBFs............. 27,920,690 Noninterest-bearing........................................................ 470,130 Interest-bearing........................................................... 27,450,560 Federal funds purchased and Securities sold under Agreements to repurchase................................................................. 1,437,916 Demand notes issued to the U.S. Treasury................................... 100,000 Trading liabilities........................................................ 2,049,818 Other borrowed money: With remaining maturity of one year or less................................ 1,279,125 With remaining maturity of more than one year through three years.......... 0 With remaining maturity of more than three years........................... 31,080 Bank's liability on acceptances executed and outstanding................... 427,110 Subordinated notes and debentures.......................................... 1,646,000 Other liabilities.......................................................... 4,604,478 --------------- Total liabilities.......................................................... 67,824,765 --------------- EQUITY CAPITAL Common stock............................................................... 1,135,285 Surplus.................................................................... 1,008,775 Undivided profits and capital reserves..................................... 4,308,492 Net unrealized holding gains (losses) on available-for-sale securities..... 27,765 Accumulated net gains (losses) on cash flow hedges......................... 0 Cumulative foreign currency translation adjustments........................ (38,656) --------------- Total equity capital....................................................... 6,441,664 --------------- Total liabilities and equity capital....................................... $74,266,429 =============== I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Thomas J. Mastro We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. Thomas A. Renyi } Alan R. Griffith } Gerald L. Hassell } --------------------
2 EX-99.1 60 manx99-1.txt FORM OF LETTER OF TRANSMITTAL Exhibit 99.1 LETTER OF TRANSMITTAL THE MANITOWOC COMPANY, INC. Offer to Exchange All Outstanding 10 3/8% Senior Subordinated Notes due 2011 For 10 3/8% Senior Subordinated Notes due 2011 Which Have Been Registered Under the Securities Act of 1933 Pursuant to the Prospectus dated __________, 2001 - -------------------------------------------------------------------------------- THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON ________, 2001, UNLESS EXTENDED (THE "EXPIRATION DATE"). - -------------------------------------------------------------------------------- The Exchange Agent for the Exchange Offer is: The Bank of New York By Registered Mail, Hand Delivery or Overnight Carrier: The Bank of New York Lower Ground Floor 30 Cannon Street London EC4M 6XH Attn: Julie McCarthy For Information, Call: 011 44 (207) 964-6513 or 011 44 (207) 964-7235 By Facsimile Transmission: (for Eligible Institutions Only) 011 44 (207) 964-6369 or 011 44 (207) 964-7294 Confirm by Telephone: 011 44 (207) 964-7235 DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL. The undersigned acknowledges that he or she has received and reviewed the Prospectus, dated ___________, 2001 (the "Prospectus"), of The Manitowoc Company, Inc., a Wisconsin corporation (the "Company"), and the subsidiaries of the Company named therein, and this Letter of Transmittal (this "Letter"), which together constitute the Company's offer (the "Exchange Offer") to exchange its 10 3/8% Senior Subordinated Notes due 2011 (the "New Notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of the Company's issued and outstanding unregistered 10 3/8% Senior Subordinated Notes due 2011 (the "Old Notes"). For each Old Note accepted for exchange, the Holder of such Old Note will receive a New Note having a principal amount equal to that of the surrendered Old Note. The New Notes will bear interest from the most recent date to which interest has been paid on the Old Notes. Accordingly, registered Holders of New Notes on the relevant record date for the first interest payment date following the consummation of the Exchange Offer will receive interest accrued from the most recent date to which interest has been paid. However, if that record date occurs prior to completion of the Exchange Offer, then the interest payable on the first interest payment date following the completion of the Exchange Offer will be paid to the registered Holders of the Old Notes on that record date. Old Notes accepted for exchange will cease to accrue interest from and after the date of consummation of the Exchange Offer and will be cancelled. Holders of Old Notes whose Old Notes are accepted for exchange will not receive any payment in respect of accrued interest on such Old Notes otherwise payable on any interest payment date the record date for which occurs on or after consummation of the Exchange Offer. This Letter is to be completed by a Holder of Old Notes either if (i) certificates are to be forwarded herewith or (ii) tenders are to be made by book-entry transfer to the account maintained by The Bank of New York (the "Exchange Agent"), at Euroclear or Clearstream Banking, societe anonyme, Luxembourg (each a "Book-Entry Transfer Facility") pursuant to the procedures set forth in "The Exchange Offer - Book-Entry Transfer" section of the Prospectus. See Instruction 1. Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent. Tenders by book-entry transfer also may be made by delivering an Agent's Message in lieu of this Letter. The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to and received by the Exchange Agent and forming a part of a book-entry transfer (a "Book-Entry Confirmation"), which states that the Book-Entry Transfer Facility has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by this Letter and the Company may enforce this Letter against such participant. As used in this Letter, the term "Holder" with respect to the Exchange Offer means any person in whose name Old Notes are registered on the books of the Company or any participant in the Book-Entry Transfer Facility whose name appears on a security position listing as the holder of Old Notes. The undersigned has completed the appropriate boxes below and signed this Letter to indicate the action the undersigned desires to take with respect to the Exchange Offer. 2 List below the Old Notes to which this Letter relates. If the space provided below is inadequate, then the certificate numbers and principal amount of Old Notes should be listed on a separate signed schedule affixed hereto. - -------------------------------------------------------------------------------- DESCRIPTION OF OLD NOTES TENDERED - -------------------------------------------------------------------------------- Name(s) and Address(es) of Aggregate Registered Holder(s) Certificate Principal Amount Principal Amount Please fill in, if blank) Number(s)* of Old Note(s) Tendered** - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Total - -------------------------------------------------------------------------------- * Do not complete if Old Notes are being tendered by book-entry transfer. ** A holder will be deemed to have tendered ALL Old Notes unless a lesser amount is specified in this column. See Instruction 2. Old Notes tendered hereby must be in denominations of principal amount of E1,000 and any integral multiples thereof. See Instruction 1. |_| CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution ____________________________________________ Euroclear or Clearstream Account Number___________________ Transaction Code Number____________________ |_| CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH. |_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. Name:______________________________________________________________________ Address:___________________________________________________________________ 3 NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS Ladies and Gentlemen: Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of Old Notes indicated on page 3 of this Letter. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Old Notes as are being tendered hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the undersigned's true and lawful agent and attorney-in-fact with respect to such tendered Old Notes, with full power of substitution, among other things, to cause the Old Notes to be assigned, transferred and exchanged. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Old Notes, and to acquire the New Notes issuable upon the exchange of such tendered Old Notes, and that, when the same are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by the Company. The undersigned hereby further represents that: (i) any New Notes acquired in exchange for Old Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, (ii) neither the Holder of such Old Notes nor any such other person has an arrangement or understanding with any person to participate in the distribution of such New Notes and (iii) neither the Holder of such Old Notes or any such other person is an "affiliate," as defined in Rule 405 under the Securities Act, of the Company. The undersigned acknowledges that this Exchange Offer is being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the "SEC"), as set forth in no-action letters issued to third parties, that the New Notes issued pursuant to the Exchange Offer in exchange for the Old Notes may be offered for resale, resold and otherwise transferred by Holders thereof (other than any such Holder that is an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such Holders' business and such Holders have no arrangement or understanding with any person to participate in the distribution of such New Notes. However, the SEC has not considered the Exchange Offer in the context of a no-action letter and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in other circumstances. If the undersigned is not a broker-dealer, then the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of the New Notes. If any Holder is an affiliate of the Company, or has any arrangement or understanding with respect to the distribution of the New Notes to be acquired pursuant to the Exchange Offer, then such Holder (i) cannot rely on the applicable interpretations of the staff of the SEC, (ii) is not entitled and will not be permitted to tender Old Notes in the Exchange Offer and (iii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, then it represents that the Old Notes to be exchanged for the New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus meeting the requirements of the Securities Act, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. The undersigned will, upon request, execute and deliver any additional documents reasonably deemed by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, 4 administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in "The Exchange Offer - Conditions to the Exchange Offer" section of the Prospectus. Unless otherwise indicated herein in the box entitled "Special Issuance Instructions" below, please deliver the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated under the box entitled "Special Delivery Instructions" below, please send the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown above in the box entitled "Description of Old Notes Tendered." The undersigned, by completing the box entitled "Description of Old Notes Tendered" above and signing this Letter, will be deemed to have tendered the Old Notes as set forth in such box above. 5
- ------------------------------------------------------------ ---------------------------------------------------------- SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (See Instructions 3 and 4) (See Instructions 3 and 4) To be completed ONLY if Old Notes not exchanged To be completed ONLY if Old Notes not exchanged and/or New Notes are to be issued in the name of someone and/or New Notes are to be sent to someone other than other than the undersigned, or if Old Notes delivered by the undersigned, or to the undersigned at an address book-entry transfer which are not accepted for exchange other than shown in the box entitled "Description of Old are to be returned by credit to an account maintained at Notes Tendered" on this Letter. the Book-Entry Transfer Facility other than the account indicated above. Mail: |_| New Notes |_| Old Notes Issue: |_| New Notes |_| Old Notes Name(s) -------------------------------------------------- (Please Type or Print) Name(s) -------------------------------------------------- ----------------------------------------- (Please Type or Print) Address -------------------------------------------------- ----------------------------------------- -------------------------------------------------- Address ----------------------------------------- ----------------------------------------- Taxpayer Identification or Social Security No. - --------------------------------------------------- |_| Credit unexchanged Old Notes delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below. - ------------------------------------------------------- (Book-Entry Transfer Facility Account Number, if applicable) - ------------------------------------------------------------ ----------------------------------------------------------
6 - -------------------------------------------------------------------------------- ALL TENDERING HOLDERS PLEASE SIGN HERE (Complete Substitute Form W-9 on page 8) x , 2001 ---------------------------------- --------------------------- Date x , 2001 ---------------------------------- --------------------------- Date Area Code and Telephone Number ________________________________________________ This Letter must be signed by the registered holder(s) or Book-Entry Transfer Facility participant(s) exactly as the name(s) appear(s) on the Old Notes or on a security position listing or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, then please provide the following information. See Instruction 3. Name(s):_______________________________________________________________________ (Please Type or Print) Capacity (full title):_________________________________________________________ Address:_______________________________________________________________________ _______________________________________________________________________________ Taxpayer Identification or Social Security No.:________________________________ - ------------------------------------------------------------------------------- SIGNATURE GUARANTEE (If required by Instruction 3) Signature(s) Guaranteed By an Eligible Institution:____________________________________________________ (Authorized Signature) Name and Title:________________________________________________________________ Name of Firm:__________________________________________________________________ Dated: ________________, 2001 - ------------------------------------------------------------------------------- IMPORTANT: This Letter (or a facsimile hereof), together with the certificates for Old Notes or a Book-Entry Confirmation and all other required documents, must be received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. 7 TO BE COMPLETED BY ALL TENDERING HOLDERS (See Instruction 5) - -------------------------------------------------------------------------------- PAYOR'S NAME: The Bank of New York - -------------------------------------------------------------------------------- SUBSTITUTE Part 1 - PLEASE PROVIDE Social security number Form W-9 YOUR TAXPAYER _____________________ IDENTIFICATION NUMBER OR IN THE BOX AT RIGHT Employer Identification AND CERTIFY BY SIGNING AND DATING BELOW. ______________________ If Old Notes are held in more than one Employer Identification number name, see the Guidelines for Certification of Taxpayer Identification Number on Substitute W-9 to determine which number you must provide. ------------------------------------------------- Department of the Treasury Part 2 - FOR PAYEES EXEMPT FROM BACK WITHHOLDING Internal Revenue Service (See the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9). ------------------------------------------------- PAYOR'S REQUEST FOR Part 3 - CERTIFICATION: UNDER THE PENALTIES OF TAXPAYER PERJURY, I CERTIFY THAT: IDENTIFICATION NUMBER AND (1) the number shown on this form is my CERTIFICATION correct taxpayer identification number (or I am waiting for a number to be issued to me); (2) I am not subject to backup withholding either because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and (3) I am a U.S. Person (including a resident alien). The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. SIGNATURE _____________________________ PRINTED NAME___________________________ DATE_____________________ You must cross out item (2) of the above certification if you have been notified by the IRS that you are subject to backup withholding because you failed to report all interest and dividends on your tax return. - -------------------------------------------------------------------------------- YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING A TAXPAYER IDENTIFICATION NUMBER. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of the exchange, 31% of all reportable payments made to me thereafter will be withheld until I provide a number. Signature____________________________________ Date__________________ - ------------------------------------------------------------------------------- 8 INSTRUCTIONS Forming Part of the Terms and Conditions of the Exchange Offer 1. Delivery of this Letter and Old Notes. This Letter is to be completed by Holders of Old Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in "The Exchange Offer - Book-Entry Transfer" section of the Prospectus and an Agent's Message is not delivered. Tenders by book-entry transfer may also be made by delivering an Agent's Message in lieu of this Letter. The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has received an express acknowledgement from the tendering participant, which acknowledgement states that such participant has received and agrees to be bound by this Letter and that the Company may enforce this Letter against such participant. Certificates for all physically tendered Old Notes, or Book-Entry Confirmation, as the case may be, as well as a properly completed and duly executed Letter (or manually signed facsimile hereof or Agent's Message in lieu thereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein on or prior to the Expiration Date. Old Notes tendered hereby must be in denominations of principal amount of E1,000 and any integral multiples thereof. The method of delivery of this Letter, the Old Notes and all other required documents is at the election and risk of the tendering Holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. Rather than mail these items, we recommend that Holders use an overnight or hand delivery service, sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. See "The Exchange Offer" section of the Prospectus. 2. Partial Tenders (not applicable to Holders who tender by book-entry transfer). If less than all of the Old Notes evidenced by a submitted certificate are to be tendered, then the tendering Holder(s) should fill in the aggregate principal amount of the Old Notes to be tendered in the box above entitled "Description of Old Notes Tendered--Principal Amount Tendered." A reissued certificate representing the balance of non-tendered Old Notes will be sent to such tendering Holder, unless otherwise provided in the appropriate box on this Letter, promptly after the Expiration Date. All of the Old Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. 3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of Signatures. If this Letter is signed by the registered Holder of the Old Notes tendered hereby, then the signature must correspond exactly with the name as written on the face of the certificates without any change whatsoever. If this Letter is signed by a Book-Entry Transfer Facility participant, then the signature must correspond with the name as it appears on the security position listing as the owner of the Old Notes. If any tendered Old Notes are owned of record by two or more joint owners, then all of such owners must sign this Letter. If any tendered Old Notes are registered in different names, then it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of Old Notes. When this Letter is signed by the registered Holder(s) of the Old Notes specified herein and tendered hereby, no endorsements of the tendered Old Notes or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, to a person other 9 than the registered Holder, then endorsements of any Old Notes transmitted hereby or separate bond powers are required. Signatures on the Old Notes or bond power must be guaranteed by an Eligible Institution. If this Letter is signed by a person other than the registered Holder(s) of any Old Notes specified herein, then such Old Notes must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered Holder or Holders appear(s) on the Old Notes (or security position listing) and signatures on the Old Notes or bond power must be guaranteed by an Eligible Institution. If this Letter or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, then such persons should so indicate when signing, and, unless waived by the Company, must submit proper evidence satisfactory to the Company of their authority to so act. Endorsements on Old Notes or signatures on bond powers required by this Instruction 3 must be guaranteed by a firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an "eligible guarantor institution," including (as such terms are defined therein) (i) a bank, (ii) broker, dealer, municipal securities broker or dealer or government securities broker or dealer, (iii) a credit union, (iv) a national securities exchange, registered securities association or clearing agency, or (v) a savings association that is a participant in a Securities Transfer Association (an "Eligible Institution"). Signatures on this Letter need not be guaranteed by an Eligible Institution if the Old Notes are tendered: (i) by a registered Holder of Old Notes (which term, for purposes of the Exchange Offer, includes any participant in the Book-Entry Transfer Facility whose name appears on a security position listing as the Owner of such Old Notes) who has not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on this Letter, or (ii) for the account of an Eligible Institution. 4. Special Issuance and Delivery Instructions. Tendering Holders of Old Notes should indicate in the applicable box on page 6 of this Letter the name and address to which New Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Old Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such Holder may designate hereon. If no such instructions are given, then such Old Notes not exchanged will be returned to the name and address of the person signing this Letter. 5. Taxpayer Identification Number. Federal income tax law generally requires that a tendering Holder whose Old Notes are accepted for exchange must provide the Company (as payor) with such Holder's correct Taxpayer Identification Number ("TIN") on the substitute Form W-9 on page 8 of this Letter, which in the case of a tendering Holder who is an individual, is his or her social security number. If the Company is not provided with the current TIN or an adequate basis for an exemption from backup withholding, then such tendering Holder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, the Exchange Agent may be required to withhold 31% of the amount of any reportable payments made after the exchange to such tendering Holder of New Notes. If withholding results in an overpayment of taxes, then a refund may be obtained. Exempt Holders of Old Notes (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. Exempt holders, other than foreign individuals, should furnish their TIN, write "Exempt" on the face of the Substitute Form W-9 10 and sign, date and return the form to the Exchange Agent. See the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for additional instructions. To prevent backup withholding, each tendering Holder of Old Notes must provide its correct TIN by completing the Substitute Form W-9 on page 8 of this Letter, certifying, under penalties of perjury, that the TIN provided is correct (or that such Holder is awaiting a TIN) and that (i) the Holder is exempt from backup withholding, or (ii) the Holder has not been notified by the Internal Revenue Service that such Holder is subject to backup withholding as a result of a failure to report all interest or dividends or (iii) the Internal Revenue Service has notified the Holder that such Holder is no longer subject to backup withholding. If the Old Notes are in more than one name or are not in the name of the actual owner, then such Holder should consult the W-9 Guidelines for information on which TIN to report. Failure to provide the information on the form may subject the Holder to 31% federal income tax backup withholding on all reportable payments tot he Holder. If such Holder does not have a TIN, then such Holder should consult the W-9 Guidelines for instructions on applying for a TIN, apply for a TIN and write "applied for" in lieu of its TIN in Part 1 of the Substitute Form W-9. Writing "applied for" on the form means that such Holder has already applied for a TIN or that such Holder intends to apply for one in the near future. If "applied for" is written in Part 1 of the Substitute Form W-9 and the Exchange Agent is not provided with a TIN within 60 days, then the Exchange Agent will withhold 31% of all reportable payments to the Holder thereafter until a TIN is provided to the Exchange Agent. 6. Transfer Taxes. The Company will pay all transfer taxes, if any, applicable to the transfer of Old Notes to it or its order pursuant to the Exchange Offer. If, however, New Notes and/or substitute Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered Holder of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to the Company or its order pursuant to the Exchange Offer, then the amount of any such transfer taxes (whether imposed on the registered Holder or any other person) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, then the amount of such transfer taxes will be billed directly to such tendering Holder. Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Old Notes specified in this Letter. 7. No Conditional Tenders. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders of Old Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Old Notes for exchange. Neither the Company, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Old Notes nor shall any of them incur any liability for failure to give any such notice. 8. Mutilated, Lost, Stolen or Destroyed Old Notes. Any Holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions. This Letter and related documents cannot be processed until the procedures for replacing mutilated, lost, stolen or destroyed certificates have been followed. 9. Withdrawal Rights. Tenders of Old Notes may be withdrawn at any time prior to 5:00 P.M., New York City time, on the Expiration Date. For a withdrawal of a tender of Old Notes to be effective, a written notice of 11 withdrawal must be received by the Exchange Agent at the address on page 1 of this Letter prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person having tendered the Old Notes to be withdrawn (the "Depositor"), (ii) identify the Old Notes to be withdrawn (including certificate number or numbers and the principal amount of such Old Notes), (iii) contain a statement that such Holder is withdrawing his election to have such Old Notes exchanged, (iv) be signed by the Holder in the same manner as the original signature on the Letter by which such Old Notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer to have the Trustee with respect to the Old Notes register the transfer of such Old Notes in the name of the person withdrawing the tender and (v) specify the name in which such Old Notes are registered, if different from that of the Depositor. If Old Notes have been tendered pursuant to the procedure for book-entry transfer set forth in "The Exchange Offer - Book-Entry Transfer" section of the Prospectus, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Old Notes and otherwise comply with the procedures of such facility. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer and no New Notes will be issued with respect thereto unless the Old Notes so withdrawn are validly retendered. Any Old Notes that have been tendered for exchange but which are not exchanged for any reason will be returned to the Holder thereof without cost to such Holder (or, in the case of Old Notes tendered by book-entry transfer into the Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures set forth in "The Exchange Offer - Book-Entry Transfer" section of the Prospectus, such Old Notes will be credited to an account maintained with the Book-Entry Transfer Facility for the Old Notes) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Old Notes may be retendered by following the procedures described above at any time on or prior to 5:00 p.m., New York City time, on the Expiration Date. 10. Irregularities. The Company will determine, in its sole discretion, all questions as to the form, validity, eligibility (including time of receipt) and acceptance for exchange of any tender of Old Notes, which determination shall be final and binding. The Company reserves the absolute right to reject any and all tenders of any particular Old Notes not properly tendered or to not accept any particular Old Notes which acceptance might, in the judgment of the Company or its counsel, be unlawful. The Company also reserves the absolute right, in its sole discretion, to waive any defects or irregularities or conditions of the Exchange Offer as to any particular Old Notes either before or after the Expiration Date (including the right to waive the ineligibility of any holder who seeks to tender Old Notes in the Exchange Offer). The interpretation of the terms and conditions of the Exchange Offer as to any particular Old Notes either before or after the Expiration Date (including this Letter and the instructions thereto) by the Company shall be final and binding on all parties. Unless waived, any defects or irregularities in connection with the tender of Old Notes for exchange must be cured within such reasonable period of time as the Company shall determine. Neither the Company, the Exchange Agent nor any other person shall be under any duty to give notification of any defect or irregularity with respect to any tender of Old Notes for exchange, nor shall any of them incur any liability for failure to give such notification. 11. Requests for Assistance or Additional Copies. Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus, this Letter and other related documents may be directed to the Exchange Agent, at the address and telephone number indicated on page 1 of this Letter. 12 EX-99.2 61 manx99-2.txt FORM OF LETTER TO CLIENTS Exhibit 99.2 THE MANITOWOC COMPANY, INC. Offer to Exchange All Outstanding 10 3/8% Senior Subordinated Notes due 2011 For New 10 3/8% Senior Subordinated Notes due 2011 To Our Clients: Enclosed for your consideration is a Prospectus, dated __________, 2001 (the "Prospectus"), and the related Letter of Transmittal (the "Letter of Transmittal"), relating to the offer (the "Exchange Offer") of The Manitowoc Company, Inc. (the "Company") to exchange its 10 3/8% Senior Subordinated Notes due 2011 (the "New Notes"), which have been registered under the Securities Act of 1933, as amended, for all of its outstanding unregistered 10 3/8% Senior Subordinated Notes due 2011 (the "Old Notes"), upon the terms and subject to the conditions described in the Prospectus and the Letter of Transmittal. The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement, dated May 9, 2001, among the Company, the Guarantors named therein and the initial purchaser named therein, relating to the Old Notes. This material is being forwarded to you as the beneficial owner of the Old Notes held by us for your account but not registered in your name. A tender of such Old Notes may only be made by us as the holder of record and pursuant to your instructions. Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. We urge you to read the Prospectus carefully before instructing us as to whether or not to tender your Old Notes. Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m., New York City time, on _________, 2001, unless extended by the Company (the "Expiration Date"). Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date. Your attention is directed to the following: 1. The Exchange Offer is for any and all Old Notes. 2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned "The Exchange Offer - Conditions to the Exchange Offer." 3. Subject to the terms and conditions in the Prospectus and the Letter of Transmittal, any transfer taxes incident to the transfer of Old Notes from the Holder to the Company will be paid by the Company. 4. The Exchange Offer expires at 5:00 p.m., New York City time, on ___________, 2001, with respect to the Old Notes, unless extended by the Company. If you wish to have us tender your Old Notes, please instruct us by completing, executing and returning to us the instruction form on the back of this letter. The Letter of Transmittal is furnished to you for information only and may not be used directly by you to tender Old Notes. If we do not receive written instructions in accordance with the procedures presented in the Prospectus and the Letter of Transmittal we will not tender any of the outstanding Old Notes on your account. INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER The undersigned acknowledge(s) receipt of your letter and the enclosed material referred to therein relating to the Exchange Offer made by The Manitowoc Company, Inc. with respect to its Old Notes. This will instruct you to tender the Old Notes held by you for the account of the undersigned, upon and subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal. The undersigned expressly agrees to be bound by the enclosed Letter of Transmittal and that such Letter of Transmittal may be enforced against the undersigned. Please tender the Old Notes held by you for my account as indicated below: Aggregate Principal Amount of Old Notes Tendered 10 3/8% Senior Subordinated Notes due 2011 ___________________________________ [ ] Please do not tender any Old Notes held by you for my account. ___________________________________ ___________________________________ Dated:______________________________, 2001 Signature(s) ___________________________________ ___________________________________ Please print name(s) here ___________________________________ ___________________________________ ___________________________________ ___________________________________ Address(es) ___________________________________ Area Code and Telephone Number ___________________________________ Tax Identification or Social Security No(s). None of the Old Notes held by us for your account will be tendered unless we receive written instructions from you to do so. Unless a specific contrary instruction is given in the space provided, your signature(s) hereon shall constitute an instruction to us to tender all the Old Notes held by us for your account. EX-99.3 62 manx99-3.txt FORM OF LETTER TO BROKERS, DEALERS Exhibit 99.3 THE MANITOWOC COMPANY, INC. Offer to Exchange All Outstanding 10 3/8% Senior Subordinated Notes due 2011 For New 10 3/8% Senior Subordinated Notes due 2011 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: The Manitowoc Company, Inc. (the "Company") is offering, upon and subject to the terms and conditions set forth in the Prospectus, dated ________, 2001 (the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of Transmittal"), to exchange (the "Exchange Offer") its 10 3/8% Senior Subordinated Notes due 2011 (the "New Notes"), which have been registered under the Securities Act of 1933, as amended, for all of its outstanding unregistered 10 3/8% Senior Subordinated Notes due 2011 (the "Old Notes"). The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement, dated May 9, 2001, among the Company, the Guarantors named therein and the initial purchaser named therein, relating to the Old Notes. We are requesting that you contact your clients for whom you hold Old Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Notes registered in your name or in the name of your nominee, or who hold Old Notes registered in their own names, we are enclosing the following documents: 1. The Prospectus; 2. The Letter of Transmittal for your use and for the information of your clients; 3. A form of letter which may be sent to your clients for whose accounts you hold Old Notes registered in your name or the name of your nominee, with space provided for obtaining such clients' instructions with respect to the Exchange Offer; 4. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9; and 5. A return envelope addressed to The Bank of New York, the Exchange Agent for the Old Notes. Your prompt action is required. The Exchange Offer will expire at 5:00 p.m., New York City time, on _________, 2001, unless extended by the Company (the "Expiration Date"). Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date. To participate in the Exchange Offer, a duly executed and properly completed Letter of Transmittal (or facsimile thereof or agent's message in lieu thereof), with any required signature guarantees and any other required documents, should be sent to the Exchange Agent, and certificates representing the Old Notes, or a timely confirmation of a book-entry transfer of such Old Notes, should be delivered to the Exchange Agent, all in accordance with the instructions set forth in the Letter of Transmittal and the Prospectus. The Company will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Old Notes held by them as nominee or in a fiduciary capacity. The Company will not make any payments to brokers, dealers or others soliciting acceptances of the Exchange Offer. The Company will pay or cause to be paid all transfer taxes applicable to the exchange of Old Notes pursuant to the Exchange Offer, except as set forth in Instruction 6 of the Letter of Transmittal. Any inquiries you may have with respect to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to The Bank of New York, the Exchange Agent, at its address and telephone number set forth on the front of the Letter of Transmittal. Very truly yours, THE MANITOWOC COMPANY, INC. Nothing herein or in the enclosed documents shall constitute you or any person as an agent of the Company or the Exchange Agent, or authorize you or any other person to use any document or make any statements on behalf of either of them with respect to the Exchange Offer, except for statements expressly made in the Prospectus or the Letter of Transmittal. -2- -----END PRIVACY-ENHANCED MESSAGE-----