-----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, TaAS6tVvsilxHD1VqUnZRL1kfI1DLsLIFT064w1Vl3OofReQH9GGNVstChcz7a1b GTlu+JEx9iYepSwbb9+cLA== 0000897069-01-500317.txt : 20010802 0000897069-01-500317.hdr.sgml : 20010802 ACCESSION NUMBER: 0000897069-01-500317 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20010630 FILED AS OF DATE: 20010801 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GEHL CO CENTRAL INDEX KEY: 0000856386 STANDARD INDUSTRIAL CLASSIFICATION: FARM MACHINERY & EQUIPMENT [3523] IRS NUMBER: 390300430 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-18110 FILM NUMBER: 1694936 BUSINESS ADDRESS: STREET 1: 143 WATER STREET CITY: WEST BEND STATE: WI ZIP: 53095 BUSINESS PHONE: 4143349461 MAIL ADDRESS: STREET 1: 143 WATER STREET CITY: WEST BEND STATE: WI ZIP: 53095 10-Q 1 pdm93a.txt FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 FORM 10-Q [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarterly Period Ended June 30, 2001 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ................ to ............ Commission file number 0-18110 GEHL COMPANY --------------------------------- Wisconsin 39-0300430 - --------------------------------------------- ------------------------------- (State or other jurisdiction of incorporation (I.R.S. Employer or organization) Identification No.) 143 Water Street, West Bend, WI 53095 - --------------------------------------------- ------------------------------- (Address of principal executive office) (Zip code) (262) 334-9461 ---------------------------------------------------------------- (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ------- ------ Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. Class Outstanding at June 30, 2001 ---------------------------- ---------------------------- Common Stock, $.10 Par Value 5,347,742 GEHL COMPANY ------------ FORM 10-Q June 30, 2001 REPORT INDEX ------------ Page No. -------- PART I. - FINANCIAL INFORMATION: Item 1. Financial Statements Condensed Consolidated Statements of Income for the Three- and Six-month Periods Ended June 30, 2001 and July 1, 2000...................................................... 3 Condensed Consolidated Balance Sheets at June 30, 2001, December 31, 2000, and July 1, 2000............................... 4 Condensed Consolidated Statements of Cash Flows for the Six-month Periods Ended June 30, 2001 and July 1, 2000...................................................... 5 Notes to Condensed Consolidated Financial Statements................ 6 Item 2. Management's Discussion and Analysis of Results of Operations and Financial Condition................................ 8 Item 3. Quantitative and Qualitative Disclosures about Market Risk..........12 PART II. - OTHER INFORMATION: Item 1. Legal Proceeding ...................................................13 Item 6. Exhibits and Reports on Form 8-K....................................13 SIGNATURES...................................................................15 -2- PART I - FINANCIAL INFORMATION Item 1. Financial Statements GEHL COMPANY AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF INCOME (in thousands, except per share data; unaudited)
Three Months Ended Six Months Ended ------------------ ---------------- June 30, 2001 July 1, 2000 June 30, 2001 July 1, 2000 ------------- ------------ ------------- ------------ NET SALES $ 77,363 $ 79,080 $ 141,079 $ 151,134 Cost of goods sold 57,679 57,684 105,168 110,456 ---------- ---------- ---------- ---------- GROSS PROFIT 19,684 21,396 35,911 40,678 Selling, general and administrative expenses 13,446 11,421 26,198 23,165 ---------- ---------- ---------- ---------- INCOME FROM OPERATIONS 6,238 9,975 9,713 17,513 Interest expense (1,146) (1,391) (2,342) (2,264) Interest income 489 445 1,018 825 Other expense, net (673) (1,138) (1,904) (1,923) ----------- ----------- ----------- ----------- INCOME BEFORE INCOME TAXES 4,908 7,891 6,485 14,151 Income tax provision 1,718 2,762 2,270 4,953 ---------- ---------- ---------- ---------- NET INCOME $ 3,190 $ 5,129 $ 4,215 $ 9,198 ========== ========== ========== ========== EARNINGS PER SHARE Diluted $ .58 $ .90 $ .77 $ 1.60 ========== ========== ========== ========== Basic $ .60 $ .93 $ .79 $ 1.65 ========== ========== ========== ==========
The accompanying notes are an integral part of the financial statements. -3- GEHL COMPANY AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (in thousands, except share data)
June 30, 2001 December 31, 2000 July 1, 2000 ------------- ----------------- ------------ (Unaudited) (Audited) (Unaudited) ASSETS Cash $ 4,268 $ 2,590 $ 3,885 Accounts receivable - net 99,169 69,546 86,093 Finance contracts receivable - net 8,603 16,549 16,140 Inventories 37,492 45,598 41,109 Deferred tax assets 8,078 8,078 8,431 Other current assets 1,297 636 356 ---------- ---------- ---------- Total Current Assets 158,907 142,997 156,014 ---------- ---------- ---------- Property, plant and equipment - net 44,517 46,172 43,090 Finance contracts receivable - net, non-current 5,818 9,967 9,584 Intangible assets 12,759 13,086 15,334 Other assets 10,213 10,496 7,982 ---------- ---------- ---------- TOTAL ASSETS $ 232,214 $ 222,718 $ 232,004 ========== ========== ========== LIABILITIES AND SHAREHOLDERS' EQUITY Current portion of long-term debt obligations $ 215 $ 187 $ 326 Accounts payable 31,468 26,645 27,146 Accrued liabilities 24,544 23,195 29,169 ---------- ---------- ---------- Total Current Liabilities 56,227 50,027 56,641 ---------- ---------- ---------- Line of credit facility 50,458 51,608 53,266 Long-term debt obligations 9,113 9,277 8,967 Deferred income taxes 5,096 5,096 3,949 Other long-term liabilities 3,940 3,692 6,017 ---------- ---------- ---------- Total Long-Term Liabilities 68,607 69,673 72,199 ---------- ---------- ---------- Common stock, $.10 par value, 25,000,000 shares authorized, 5,347,742, 5,330,500 and 5,480,671 shares outstanding, respectively 535 533 548 Preferred stock, $.10 par value 2,000,000 shares authorized, 250,000 shares designated as Series A Preferred Stock, no shares issued - - - Capital in excess of par 6,640 6,495 7,853 Retained earnings 100,339 96,124 95,666 Accumulated other comprehensive loss (134) (134) (903) ----------- ----------- ----------- Total Shareholders' Equity 107,380 103,018 103,164 ---------- ---------- ---------- TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 232,214 $ 222,718 $ 232,004 ========== ========== ==========
The accompanying notes are an integral part of the financial statements. -4- GEHL COMPANY AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands; unaudited)
Six Months Ended -------------------------------------------- June 30, 2001 July 1, 2000 ------------- ------------ CASH FLOWS FROM OPERATING ACTIVITIES: Net Income $ 4,215 $ 9,198 Adjustments to reconcile net income to net cash provided by (used for) operating activities: Depreciation 2,511 2,482 Amortization 369 438 Proceeds from sales of finance contracts 57,874 40,656 Increase in finance contracts receivable (47,980) (49,112) Cost of sales of finance contracts 2,201 2,117 Net changes in remaining working capital items (16,006) (22,755) ---------- ---------- Net cash provided by (used for) operating activities 3,184 (16,976) --------- ---------- CASH FLOWS FROM INVESTING ACTIVITIES: Property, plant and equipment additions, net (2,100) (8,544) Other assets 1,485 284 --------- --------- Net cash used for investing activities (615) (8,260) ---------- ---------- CASH FLOWS FROM FINANCING ACTIVITIES: (Repayment of) proceeds from line of credit facility, net (1,150) 31,228 Proceeds from issuance of common stock 147 406 Treasury stock purchases - (3,864) Other 112 341 --------- --------- Net cash (used for) provided by financing activities (891) 28,111 ---------- --------- Net increase in cash 1,678 2,875 Cash, beginning of period 2,590 1,010 --------- --------- Cash, end of period $ 4,268 $ 3,885 ========= ========= Supplemental disclosure of cash flow information: Cash paid for the following: Interest $ 2,413 $ 2,009 Income Taxes $ 964 $ 6,047
The accompanying notes are an integral part of the financial statements. -5- GEHL COMPANY AND SUBSIDIARIES NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS June 30, 2001 (Unaudited) NOTE 1 - BASIS OF PRESENTATION The condensed consolidated financial statements included herein have been prepared by the Company, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to such rules and regulations, although management believes that the disclosures are adequate to make the information presented not misleading. In the opinion of management, the information furnished for the three- and six-month periods ended June 30, 2001 and July 1, 2000 includes all adjustments, consisting only of normal recurring accruals, necessary for a fair presentation of the results of operations and financial position of the Company. Due in part to the seasonal nature of the Company's business, the results of operations for the six months ended June 30, 2001 are not necessarily indicative of the results to be expected for the entire year. It is suggested that these interim financial statements be read in conjunction with the financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 2000, as amended, as filed with the Securities and Exchange Commission. NOTE 2 - INCOME TAXES The income tax provision is determined by applying an estimated annual effective income tax rate to income before income taxes. The estimated annual effective income tax rate is based on the most recent annualized forecast of pretax income, permanent book/tax differences, and tax credits. NOTE 3 - INVENTORIES If all of the Company's inventories had been valued on a current cost basis, which approximated FIFO value, estimated inventories by major classification would have been as follows (in thousands):
June 30, 2001 December 31, 2000 July 1, 2000 --------------- -------------------- -------------- Raw materials and supplies $ 19,581 $ 17,689 $ 17,304 Work-in-process 5,322 4,995 5,388 Finished machines and parts 32,200 42,525 37,612 --------- ----------- --------- Total current cost value 57,103 65,209 60,304 Adjustment to LIFO basis (19,611) (19,611) (19,195) ---------- ------------ ---------- $ 37,492 $ 45,598 $ 41,109 ========= =========== =========
-6- NOTE 4 - ACCOUNTING PRONOUNCEMENTS In July 2001, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards (SFAS) No. 141, "Business Combinations" and No. 142, "Goodwill and Other Intangible Assets." The statements eliminate the pooling-of-interests method of accounting for business combinations and require that goodwill and certain intangible assets not be amortized. Instead, these assets will be reviewed for impairment annually with any related losses recognized in earnings when incurred. The statements will be effective for the Company as of January 1, 2002 for existing goodwill and intangible assets and for business combinations completed after June 30, 2001. The adoptions of these statements are expected to reduce annual amortization expense by approximately $500,000. NOTE 5 - EARNINGS PER SHARE AND COMPREHENSIVE INCOME Basic net income per common share is computed by dividing net income by the weighted-average number of common shares outstanding for the period. Diluted net income per common share is computed by dividing net income by the weighted-average number of common shares and, if applicable, common stock equivalents which would arise from the exercise of stock options. A reconciliation of the shares used in the computation of earnings per share follows (in thousands): For the second quarter ended: June 30, 2001 July 1, 2000 ------------------ ----------------- Basic shares 5,341 5,520 Effect of options 188 165 ---------- ---------- Diluted shares 5,529 5,685 ========== ========== For the six months ended: June 30, 2001 July 1, 2000 ------------------ ----------------- Basic shares 5,337 5,560 Effect of options 171 177 ---------- ---------- Diluted shares 5,508 5,737 ========== ========== Accumulated other comprehensive loss is comprised entirely of minimum pension liability adjustments. Comprehensive income equaled net income for the six months ended June 30, 2001 and July 1, 2000, as the minimum pension liability amount did not change from the respective prior year-end amount. NOTE 6 - BUSINESS SEGMENTS The Company operates in two business segments: Construction equipment and Agricultural equipment. The long-term financial performance of the Company's reportable segments are affected by separate economic conditions and cycles. The segments are managed separately based on the fundamental differences in their operations. Following is selected segment information (in thousands):
Three Months Ended Six Months Ended ------------------------------- -------------------------------- June 30, 2001 July 1, 2000 June 30, 2001 July 1, 2000 -------------- -------------- ---------------- ---------------- Net Sales: Construction $ 41,239 $ 49,870 $ 73,605 $ 90,941 Agricultural 36,124 29,210 67,474 60,193 -------- -------- ---------- ---------- Consolidated $ 77,363 $ 79,080 $ 141,079 $ 151,134 ======== ======== ========== ========== -7- Income from Operations: Construction $ 2,793 $ 6,765 $ 3,671 $ 11,085 Agricultural 3,445 3,210 6,042 6,428 -------- -------- ---------- ---------- Consolidated $ 6,238 $ 9,975 $ 9,713 $ 17,513 ======== ======== ========== ==========
Item 2. Management's Discussion and Analysis of Results of Operations and - ------------------------------------------------------------------------- Financial Condition - ------------------- RESULTS OF OPERATIONS - --------------------- Three Months Ended June 30, 2001 Compared to Three Months Ended July 1, 2000 - ---------------------------------------------------------------------------- Net sales for the second quarter of 2001 were $77.4 million which compares to $79.1 million in the comparable period of 2000. Construction equipment net sales were $41.3 million in the second quarter of 2001, versus $49.9 million in the second quarter of 2000. Company sales and industry markets continued to be unfavorably affected by the impacts of lower rental rates for compact construction equipment, particularly telescopic handlers, as well as the adverse effects of the weak Euro on export shipments and rental dealers' caution about adding to or replacing fleet units. Offsetting these unfavorable industry-wide conditions are some early successes for the Company in selling telescopic handlers through its Mustang distribution channel and the continued favorable market acceptance of the four new skid loader models introduced earlier this year for Gehl and Mustang dealers. Agricultural equipment sales were $36.1 million in the second quarter of 2001, compared to $29.2 million during the year-ago period. The Company experienced continued success in leveraging its agricultural equipment distribution network for shipments of telescopic handlers, compact excavators and mini-loaders. The Company is encouraged by sales of its newly introduced round baler product line and new Agri-Loader telescopic handler products designed exclusively for the agricultural market. Improved domestic milk prices also contributed to the positive performance of the Company's agricultural equipment business. Of the Company's total net sales reported for the second quarter of 2001, $11.7 million were made outside of the United States compared with $9.5 million in the comparable period of 2000. The increase in exports was due primarily to an increase in shipments into Canada. Gross profit was $19.7 million during the second quarter of 2001 versus $21.4 million in the comparable period of 2000. Gross profit as a percent of net sales was 25.4% for the second quarter of 2001 versus 27.1% in the comparable period of 2000. Gross profit as a percent of net sales for construction equipment was 22.4% in the second quarter of 2001 compared with 25.2% for the second quarter of 2000. The decrease in construction equipment gross margin during the quarter was the result of competitive market conditions, lower production volumes and a less favorable mix of product shipments. Gross profit as a percent of net sales for agricultural equipment decreased to 28.9% in the second quarter of 2001 from 30.2% for the second quarter of 2000. The decrease in agricultural equipment gross margin during the quarter was due to a less favorable mix of product shipments Selling, general and administrative expenses were $13.4 million, or 17.4% of net sales, in the second quarter of 2001, an increase from $11.4 million, or 14.4% of net sales, in the second quarter of 2000. The Company continues to invest in revenue-enhancing projects to position the Company for future growth and market share expansion, which include its web-enabled attachment business, CE Attachments, Inc., new product development, implementation of its -8- enterprise resource planning (ERP) system, and the centralization of service parts distribution. Such investments, combined with increased selling-related costs resulting from competitive market conditions, and a lower level of sales, offset by a reduction in warranty expenses, contributed to the Company's increased operating expenses as a percentage of net sales. Income from operations in the second quarter of 2001 was $6.2 million, versus $10.0 million for the second quarter of 2000. Interest expense decreased $.2 million to $1.2 million in the second quarter of 2001 from $1.4 million in the second quarter of 2000. The decrease was a result of a decrease in the average rate of interest paid by the Company to 6.9% in the second quarter of 2001 from 8.6% for the second quarter of 2000, offset, in part, by an increase in average debt outstanding to $62.2 million in the second quarter of 2001 versus $61.0 million in the second quarter of 2000. Other expense decreased $465,000, to $673,000 in the second quarter of 2001 from $1,138,000 in the second quarter of 2000. This was primarily caused by a decrease in the costs of selling finance contracts due to lower discount rates required by third party purchasers of such contracts as a result of the general downward trend of overall interest rates. Second quarter 2001 net income was $3.2 million versus $5.1 million in the second quarter of 2000. Diluted earnings were $.58 per share for the second quarter of 2001 versus $.90 per share in 2000. Six Months Ended June 30, 2001 Compared to Six Months Ended July 1, 2000 - ------------------------------------------------------------------------ Net sales for the first six months of 2001 of $141.1 million were $10.0 million, or 7%, lower than the $151.1 million of net sales in the comparable period of 2000. Construction equipment net sales were $73.6 million in the first six months of 2001, versus $90.9 million in the first six months of 2000. Construction equipment sales and industry markets both continued to be unfavorably affected by the impacts of lower rental rates for compact construction equipment, particularly telescopic handlers, as well as the adverse effects of the weak Euro on export shipments and rental dealers' caution about adding to or replacing fleet units. Offsetting these unfavorable industry-wide conditions are some early successes for the Company in selling telescopic handlers through its Mustang distribution channel and the continued favorable market acceptance of the four new skid loader models introduced earlier this year for Gehl and Mustang dealers. Agriculture equipment net sales increased 12% to $67.5 million in the first six months of 2001 from $60.2 million in the first six months of 2000. The increase was primarily a result of favorable market acceptance of the Company's new round baler product line and new Agri-Loader telescopic handler products designed exclusively for the agricultural market, as well as sales to traditional agricultural dealers of the Company's compact excavator and mini-loader products, which were not available to these dealers in the comparable period of 2000. Improved domestic milk prices also contributed to the positive performance of the Company's agricultural equipment business. Of the Company's total net sales reported for the first six months of 2001, sales made outside the United States of $19.2 million were comparable to the $20.3 million of international sales experienced in the first six months of 2000. -9- Although the Company has taken steps in the past few years to address seasonality in its sales revenues, some still remains, primarily in the Company's second quarter which historically has tended to be its strongest quarter for sales. Gross profit decreased $4.8 million, or 12%, in the first six months of 2001 versus the comparable period of 2000, due to decreased sales volume and lower gross margin percentages. Gross profit as a percent of net sales decreased to 25.5% for the first six months of 2001 from 26.9% in the comparable period of 2000. Gross profit as a percent of net sales for construction equipment decreased to 22.4% in the first six months of 2001 from 25.1% in the first six months of 2000. The decrease in construction equipment gross margin was a result of competitive market conditions, lower production levels, higher utility costs, and a less favorable mix of product shipments. Gross profit as a percent of net sales for agriculture equipment decreased to 28.9% for the first six months of 2001 from 29.7% for the first six months of 2000. Selling, general and administrative expenses were $26.2 million, or 18.6% of net sales, in the first six months of 2001, an increase from $23.2 million, or 15.3% of net sales, in the comparable period of 2000. Gehl continues to invest in revenue-enhancing projects to position the Company for future growth and market share expansion, which include its web-enabled attachment business, CE Attachments, Inc., new product development, implementation of it enterprise resource planning (ERP) system, and the centralization of service parts distribution. Such investments, combined with increased selling-related costs resulting from competitive market conditions, and a lower level of sales, contributed to the Company's increased operating expenses as a percentage of net sales. Income from operations in the first six months of 2001 was $9.7 million versus $17.5 million for the comparable period of 2000. Interest expense remained constant at $2.3 million in the first six months of both 2001 and 2000. Average debt outstanding was $59.7 million in the first six months of 2001 versus $51.2 million in the comparable period of 2000 while the average rate of interest paid by the Company declined to approximately 7.4% in the first six months of 2001 versus 8.5% in the comparable period of 2000. Net income was $4.2 million for the six months ended June 30, 2001 versus $9.2 million for the six months ended July 1, 2000. Financial Condition The Company's working capital was $102.7 million at June 30, 2001, as compared to $93.0 million at December 31, 2000, and $99.4 million at July 1, 2000. The increase since December 31, 2000 was due primarily to seasonal increases in accounts receivable offset by decreases in finance contracts receivable, inventory and an increase in accounts payable. Capital expenditures for property, plant and equipment during the first six months of 2001 were approximately $2.1 million. The Company plans to make up to $4 million in capital expenditures in 2001. The Company believes its present facilities will be sufficient to provide adequate capacity for its operations for the foreseeable future. As of June 30, 2001, the weighted-average interest rate paid by the Company on outstanding borrowings under its line of credit facility was 5.9%. The Company had available unused borrowing capacity of $22.7 million, $20.2 million and $19.8 million under the line of credit -10- facility at June 30, 2001, December 31, 2000, and July 1, 2000, respectively. At June 30, 2001, December 31, 2000, and July 1, 2000, the Company's outstanding borrowings under the line of credit facility were $50.5 million, $51.6 million and $53.3 million, respectively. The sale of finance contracts is an important component of the Company's overall liquidity. The Company has arrangements with several financial institutions and financial service companies to sell, with recourse, its finance contracts receivable. The Company continues to service substantially all contracts whether or not sold. At June 30, 2001, the Company serviced $156.1 million of such contracts, of which $139.5 million were owned by other parties. The Company believes that it will be able to arrange sufficient capacity to sell its finance contracts for the foreseeable future. At June 30, 2001, shareholders' equity had increased $4.2 million to $107.4 million from $103.2 million at July 1, 2000. This increase primarily reflected the impact of the income earned from July 2, 2000 to June 30, 2001. Accounting Pronouncements In July 2001, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards (SFAS) No. 141, "Business Combinations" and No. 142, "Goodwill and Other Intangible Assets." The statements eliminate the pooling-of-interests method of accounting for business combinations and require that goodwill and certain intangible assets not be amortized. Instead, these assets will be reviewed for impairment annually with any related losses recognized in earnings when incurred. The statements will be effective for the Company as of January 1, 2002 for existing goodwill and intangible assets and for business combinations completed after June 30, 2001. The adoptions of these statements is expected to reduce annual amortization expense by approximately $500,000. Outlook The Company believes it should be able to meet the lower end of previous earnings guidance issued for the full year, despite the continuing soft economic conditions and related weakness in the construction market, particularly the steep drop in the telescopic handler market. The low end of the range for full year 2001 previously provided by the Company in February 2001 was $1.52 per diluted share. As announced on May 9, 2001, Gehl is engaged in the process of reviewing its strategic alternatives, including the possible sale of the Company. Various U.S. and international entities have expressed interest in pursuing a business combination transaction or other strategic relationship with the Company. Gehl is continuing the second stage of the review process. Forward-Looking Statements Certain matters discussed in this filing are "forward-looking statements" intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact, including statements regarding the Company's future financial position, business strategy, targets, projected sales and earnings, and the plans and objectives of management for future operations, are forward-looking statements. When used in this filing, words such as the Company "expects" or "estimates" or words of similar meaning are generally intended to identify forward-looking statements. These forwarding-looking statements are not guarantees of future performance and are subject to certain -11- risks, uncertainties, assumptions and other factors, some of which are beyond the Company's control, that could cause actual results to differ materially from those anticipated as of the date of this filing. Factors that could cause such a variance include, but are not limited to, unanticipated changes in general economic and capital market conditions, the Company's ability to implement successfully its strategic initiatives, unanticipated developments related to the Company's review of strategic alternatives, market acceptance of newly introduced products, the cyclical nature of the Company's business, the Company's and its customers' access to credit, competitive pricing, product initiatives and other actions taken by competitors, disruptions in production capacity, excess inventory levels, the effect of changes in laws and regulations (including government subsidies and international trade regulations), technological difficulties, changes in currency exchange rates, changes in environmental laws, and employee and labor relations. Shareholders, potential investors, and other readers are urged to consider these factors in evaluating the forward-looking statements and are cautioned not to place undue reliance on such forward-looking statements. The forward-looking statements included in this filing are only made as of the date of this filing, and the Company undertakes no obligation to publicly update such forward-looking statements to reflect subsequent events or circumstances. In addition, the Company's expectations for fiscal year 2001 are based in part on certain assumptions made by the Company, including those relating to commodities prices, which are strongly affected by weather and other factors and can fluctuate significantly, housing starts and other construction activities, which are sensitive to, among other things, interest rates and government spending, and the performance of the U.S. economy generally. The accuracy of these or other assumptions could have a material effect on the Company's ability to achieve its expectations. Item 3. Quantitative and Qualitative Disclosures about Market Risk - ------- ---------------------------------------------------------- There are no material changes to the information provided in response to this item as set forth in the Company's Form 10-K for the year ended December 31, 2000, as amended, as filed with the Securities and Exchange Commission. -12- PART II - OTHER INFORMATION Item 1. Legal Proceedings - ------- ----------------- A shareholder lawsuit against the Company and its Board of Directors resulting from the Board's response to a December 2000 highly conditional purported offer to acquire the Company was voluntarily dismissed without prejudice by the plaintiff on May 14, 2001. The lawsuit had been filed in a Washington County, Wisconsin court by Jim Speckbrock on behalf of himself and purportedly on behalf of all others similarly situated. The existence of the lawsuit had been previously reported in the Company's Annual Report on Form 10-K for the year ended December 31, 2000. Item 6. Exhibits and Reports on Form 8-K - ------- --------------------------------- (a) Exhibits -------- 3.1 Amendment to Gehl Company By-laws dated May 7, 2001 3.2 By-laws of Gehl Company, as amended 10.1 Supplemental Retirement Benefit Agreement between Gehl Company and Daniel M. Keyes dated as of June 13, 2001 [Incorporated by reference to the form of such Agreement included as Exhibit 10.7 to the Company's Quarterly Report on Form 10-Q for the quarter ended July 1, 2000] 10.2 Amendment to Amended and Restated Employment Agreement between Gehl Company and William D. Gehl dated as of June 13, 2001 10.3 Amendment to the Change in Control and Severance Agreement between Gehl Company and Daniel M. Keyes dated as of June 13, 2001 10.4 Form of Amendment to the Change in Control and Severance Agreement between Gehl Company and each of Messrs. Hahn, Moore, Mulcahy and Semler dated as of June 13, 2001 10.5 Form of Retention Agreement, dated as of June 13, 2001, between Gehl Company and each of Messrs. Gehl, Moore, Hahn, Mulcahy, Semler and Keyes -13- Item 6. Exhibits and Reports on Form 8-K (continued) - ------- -------------------------------- (b) Reports on Form 8-K ------------------- A Current Report on Form 8-K, dated June 26, 2001, was filed by the Company in connection with the Press Release announcing (under Item 9), among other things, the Company's outlook for the second quarter of 2001 and the remainder of 2001. The Press Release was included as an exhibit to the Current Report pursuant to Item 7. A Current Report on Form 8-K, dated May 14, 2001, was filed by the Company in connection with the Press Release announcing (under Item 9) the dismissal of a shareholder lawsuit against the Company and its Board of Directors. The Press Release was included as an exhibit to the Current Report pursuant to Item 7. A Current Report on Form 8-K, dated May 9, 2001, was filed by the Company in connection with the Press Release announcing (under Item 9), among other things, that the Company's Board of Directors will explore a full range of strategic alternatives to maximize shareholder value, including acquisitions, strategic alliances, divestitures, a leveraged buyout, a recapitalization and the potential sale of the Company, and that the Company has retained Robert W. Baird & Co. to assist the Board of Directors in its strategic review. The Press Release was included as an exhibit to the Current Report pursuant to Item 7. A Current Report on Form 8-K, dated May 3, 2001, was filed by the Company in connection with the Press Release announcing (under Item 9), among other things, the Company's financial results for the quarter ended March 31, 2001. The Press Release was included as an exhibit to the Current Report pursuant to Item 7. -14- SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. GEHL COMPANY Date: August 1, 2001 By: /s/ William D. Gehl ------------------- William D. Gehl Chairman of the Board, President and Chief Executive Officer Date: August 1, 2001 By: /s/ Kenneth P. Hahn ------------------- Kenneth P. Hahn Vice President of Finance, Treasurer and Chief Financial Officer (Principal Financial and Accounting Officer) -15- GEHL COMPANY INDEX TO EXHIBITS Exhibit No. Document Description ----------- -------------------- 3.1 Amendment to Gehl Company By-laws dated May 7, 2001 3.2 By-laws of Gehl Company, as amended 10.1 Supplemental Retirement Benefit Agreement between Gehl Company and Daniel M. Keyes dated as of June 13, 2001 [Incorporated by reference to the form of such Agreement included as Exhibit 10.7 to the Company's Quarterly Report on Form 10-Q for the quarter ended July 1, 2000] 10.2 Amendment to Amended and Restated Employment Agreement between Gehl Company and William D. Gehl dated as of June 13, 2001 10.3 Amendment to the Change in Control and Severance Agreement between Gehl Company and Daniel M. Keyes dated as of June 13, 2001 10.4 Form of Amendment to the Change in Control and Severance Agreement between Gehl Company and each of Messrs. Hahn, Moore, Mulcahy and Semler dated as of June 13, 2001 10.5 Form of Retention Agreement, dated as of June 13, 2001, between Gehl Company and each of Messrs. Gehl, Moore, Hahn, Mulcahy, Semler and Keyes -16- EX-3.1 3 pdm93b.txt AMENDMENT TO BY-LAWS On May 7, 2001, by action of the Board of Directors, the second sentence of Section 2.14(a)(ii) of the Company's By-laws was amended to provide as follows: To be timely, a shareholder's notice shall be received by the Secretary of the corporation at the principal office of the corporation not less than 60 days nor more than 90 days prior to the last Thursday in the month of April; provided, however, that in the event that the date of the Annual Meeting is advanced by more than 30 days or delayed by more than 150 days from the last Thursday in the month of April, notice by the shareholder to be timely must be so received not earlier than the 90th day prior to the date of such Annual Meeting and not later than the close of business on the later of (x) the 60th day prior to such Annual Meeting and (y) the 10th day following the day on which public announcement of the date of such meeting is first made. EX-3.2 4 pdm93c.txt BY-LAWS (Restated/approved 7/23/99) Amended 5/7/01 BY-LAWS OF GEHL COMPANY 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 shareholders (the "Annual Meeting") shall be held each year at 7:00 P.M. (Central Time) on the last Thursday in April, 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 that number of directors equal to the number of directors in the class whose term expires at the time of the Annual Meeting and for the transaction of such other business as may properly come before the Annual Meeting in accordance with Section 2.14 of these by-laws. 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. In fixing a meeting date for any Annual Meeting, the Board of Directors may consider such factors as it deems relevant within the good faith exercise of its business judgment. 2.02. Special Meetings. (a) A special meeting of shareholders (a "Special Meeting") may be called only by (i) the President or (ii) the Board of Directors and shall be called by the President upon the demand, in accordance with this Section 2.02, of the holders of record of shares representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting. (b) In order that the corporation may determine the shareholders entitled to demand a Special Meeting, the Board of Directors may fix a record date to determine the shareholders entitled to make such a demand (the "Demand Record Date"). The Demand Record Date shall not precede the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors and shall not be more than 10 days after the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors. Any shareholder of record seeking to have shareholders demand a Special Meeting shall, by sending written notice to the Secretary of the corporation by hand or by certified or registered mail, return receipt requested, request the Board of Directors to fix a Demand Record Date. The Board of Directors shall promptly, but in all events within 10 days after the date on which a valid request to fix a Demand Record Date is received, adopt a resolution fixing the Demand Record Date and shall make a public announcement of such Demand Record Date. If no Demand Record Date has 1 been fixed by the Board of Directors within 10 days after the date on which such request is received by the Secretary, the Demand Record Date shall be the 10th day after the first date on which a valid written request to set a Demand Record Date is received by the Secretary. To be valid, such written request shall set forth the purpose or purposes for which the Special Meeting is to be held, shall be signed by one or more shareholders of record (or their duly authorized proxies or other representatives), shall bear the date of signature of each such shareholder (or proxy or other representative) and shall set forth all information about each such shareholder and about the beneficial owner or owners, if any, on whose behalf the request is made that would be required to be set forth in a shareholder's notice described in paragraph (a)(ii) of Section 2.14 of these by-laws. (c) In order for a shareholder or shareholders to demand a Special Meeting, a written demand or demands for a Special Meeting by the holders of record as of the Demand Record Date of shares representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting must be delivered to the corporation. To be valid, each written demand by a shareholder for a Special Meeting shall set forth the specific purpose or purposes for which the Special Meeting is to be held (which purpose or purposes shall be limited to the purpose or purposes set forth in the written request to set a Demand Record Date received by the corporation pursuant to paragraph (b) of this Section 2.02), shall be signed by one or more persons who as of the Demand Record Date are shareholders of record (or their duly authorized proxies or other representatives), shall bear the date of signature of each such shareholder (or proxy or other representative), and shall set forth the name and address, as they appear in the corporation's books, of each shareholder signing such demand and the class and number of shares of the corporation which are owned of record and beneficially by each such shareholder, shall be sent to the Secretary by hand or by certified or registered mail, return receipt requested, and shall be received by the Secretary within 70 days after the Demand Record Date. (d) The corporation shall not be required to call a Special Meeting upon shareholder demand unless, in addition to the documents required by paragraph (c) of this Section 2.02, the Secretary receives a written agreement signed by each Soliciting Shareholder (as defined below), pursuant to which each Soliciting Shareholder, jointly and severally, agrees to pay the corporation's costs of holding the Special Meeting, including the costs of preparing and mailing proxy materials for the corporation's own solicitation, provided that if each of the resolutions introduced by any Soliciting Shareholder at such meeting is adopted, and each of the individuals nominated by or on behalf of any Soliciting Shareholder for election as director at such meeting is elected, then the Soliciting Shareholders shall not be required to pay such costs. For purposes of this paragraph (d), the following terms shall have the meanings set forth below: (i) "Affiliate" of any Person (as defined herein) shall mean any Person controlling, controlled by or under common control with such first Person. (ii) "Participant" shall have the meaning assigned to such term in Rule 14a-11 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 2 (iii) "Person" shall mean any individual, firm, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity. (iv) "Proxy" shall have the meaning assigned to such term in Rule 14a-1 promulgated under the Exchange Act. (v) "Solicitation" shall have the meaning assigned to such term in Rule 14a-11 promulgated under the Exchange Act. (vi) "Soliciting Shareholder" shall mean, with respect to any Special Meeting demanded by a shareholder or shareholders, any of the following Persons: (A) if the number of shareholders signing the demand or demands of meeting delivered to the corporation pursuant to paragraph (c) of this Section 2.02 is 10 or fewer, each shareholder signing any such demand; (B) if the number of shareholders signing the demand or demands of meeting delivered to the corporation pursuant to paragraph (c) of this Section 2.02 is more than 10, each Person who either (I) was a Participant in any Solicitation of such demand or demands or (II) at the time of the delivery to the corporation of the documents described in paragraph (c) of this Section 2.02 had engaged or intended to engage in any Solicitation of Proxies for use at such Special Meeting (other than a Solicitation of Proxies on behalf of the corporation); or (C) any Affiliate of a Soliciting Shareholder, if a majority of the directors then in office determine, reasonably and in good faith, that such Affiliate should be required to sign the written notice described in paragraph (c) of this Section 2.02 and/or the written agreement described in this paragraph (d) in order to prevent the purposes of this Section 2.02 from being evaded. (e) Except as provided in the following sentence, any Special Meeting shall be held at such hour and day as may be designated by whichever of the President or the Board of Directors shall have called such meeting. In the case of any Special Meeting called by the President upon the demand of shareholders (a "Demand Special Meeting"), such meeting shall be held at such hour and day as may be designated by the Board of Directors; provided, however, that the date of any Demand Special Meeting shall be not more than 70 days after the Meeting Record Date (as defined in Section 2.05 hereof); and provided further that in the event that the directors then in office fail to designate an hour and date for a Demand Special Meeting within 10 days after the date that valid written demands for such meeting by the holders of record as of the Demand Record Date of shares representing at least 10% of all the votes entitled to be cast on each issue proposed to be considered at the Special Meeting are delivered to the corporation (the "Delivery Date"), then such meeting shall be held at 2:00 P.M. (Central Time) on the 100th day 3 after the Delivery Date or, if such 100th day is not a Business Day (as defined below), on the first preceding Business Day. In fixing a meeting date for any Special Meeting, the President or the Board of Directors may consider such factors as he or it deems relevant within the good faith exercise of his or its business judgment, including, without limitation, the nature of the action proposed to be taken, the facts and circumstances surrounding any demand for such meeting, and any plan of the Board of Directors to call an Annual Meeting or a Special Meeting for the conduct of related business. (f) The corporation may engage regionally or nationally recognized independent inspectors of elections to act as an agent of the corporation for the purpose of promptly performing a ministerial review of the validity of any purported written demand or demands for a Special Meeting received by the Secretary. For the purpose of permitting the inspectors to perform such review, no purported demand shall be deemed to have been delivered to the corporation until the earlier of (i) 5 Business Days following receipt by the Secretary of such purported demand and (ii) such date as the independent inspectors certify to the corporation that the valid demands received by the Secretary represent at least 10% of all the votes entitled to be cast on each issue proposed to be considered at the Special Meeting. Nothing contained in this paragraph (f) shall in any way be construed to suggest or imply that the Board of Directors or any shareholder shall not be entitled to contest the validity of any demand, whether during or after such 5 Business Day period, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto). (g) For purposes of these by-laws, "Business Day" shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in the State of Wisconsin are authorized or obligated by law or executive order to close. 2.03. Place of Meeting. The Board of Directors or the President 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, or for any postponement thereof. If no designation is made, the place of meeting shall be the principal office of the corporation in the State of Wisconsin. Any meeting may be adjourned to reconvene at any place designated by vote of the Board of Directors or by the President. 2.04. Notice of Meeting. Written or printed notice stating the place, day and hour of any Annual Meeting or Special Meeting shall be delivered not less than 10 days (unless a longer period is required by the Wisconsin Business Corporation Law) nor more than 70 days, before the date of such meeting, either personally or by mail, by or at the direction of the Secretary to each shareholder of record entitled to vote at such meeting and to other shareholders as may be required by the Wisconsin Business Corporation Law. In the event of any Demand Special Meeting, such notice of meeting shall be sent not more than 30 days after the Delivery Date. If mailed, notice pursuant to this Section 2.04 shall be deemed to be effective when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid. Unless otherwise required by the Wisconsin Business Corporation Law or the restated articles of incorporation, a notice of an Annual Meeting need not include a description of the purpose for which the meeting is called. In the case of any Special Meeting, (a) the notice of meeting shall describe any 4 business that the Board of Directors shall have theretofore determined to bring before the meeting and (b) in the case of a Demand Special Meeting, the notice of meeting (i) shall describe any business set forth in the statement of purpose of the demands received by the corporation in accordance with Section 2.02 of these by-laws and (ii) shall contain all of the information required in the notice received by the corporation in accordance with Section 2.14(b) of these by-laws. If an Annual Meeting or Special Meeting is adjourned to a different date, time or place, the corporation shall not be required to give notice of the new date, time or place if the new date, time or place is announced at the meeting before adjournment; provided, however, that if a new Meeting Record Date for an adjourned meeting is or must be fixed, the corporation shall give notice of the adjourned meeting to persons who are shareholders as of the new Meeting Record Date. 2.05. Fixing of Record Date. The Board of Directors may fix a future date not less than 10 days and not more than 70 days prior to the date of any Annual Meeting or Special Meeting as the record date for the determination of shareholders entitled to notice of, or to vote at, such meeting (the "Meeting Record Date"). In the case of any Demand Special Meeting, (i) the Meeting Record Date shall be not later than the 30th day after the Delivery Date and (ii) if the Board of Directors fails to fix the Meeting Record Date within 30 days after the Delivery Date, then the close of business on such 30th day shall be the Meeting Record Date. The shareholders of record on the Meeting Record Date shall be the shareholders entitled to notice of and to vote at the meeting. Except as provided by the Wisconsin Business Corporation Law for a court-ordered adjournment, a determination of shareholders entitled to notice of or to vote at any Annual Meeting or Special Meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new Meeting Record Date, which it shall do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. The Board of Directors may also fix a future date as the record date for the purpose of determining shareholders entitled to take any other action or determining shareholders for any other purpose. Such record date shall be not more than 70 days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. The record date for determining shareholders entitled to a distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation's shares) or a share dividend is the date on which the Board of Directors authorizes the distribution or share dividend, as the case may be, unless the Board of Directors fixes a different record date. 5 2.06. Voting Lists. After a Meeting Record Date has been fixed, the corporation shall prepare a list of the names of all of the shareholders entitled to notice of the meeting. The list shall be arranged by class or series of shares, if any, and show the address of and number of shares held by each shareholder. Such list shall be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared 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. A shareholder or his or her agent may, on written demand, inspect and, subject to the limitations imposed by the Wisconsin Business Corporation Law, copy the list, during regular business hours and at his or her expense, during the period that it is available for inspection pursuant to this Section 2.06. The corporation shall make the shareholders' list available at the meeting and any shareholder or his or her agent or attorney may inspect the list at any time during the meeting or any adjournment thereof. Refusal or failure to prepare or make available the shareholders' list shall not affect the validity of any action taken at an Annual Meeting or Special Meeting. 2.07. Quorum and Voting Requirements; Postponements; Adjournments. (a) Shares entitled to vote as a separate voting group may take action on a matter at any Annual Meeting or Special Meeting only if a quorum of those shares exists with respect to that matter. If the corporation has only one class of stock outstanding, such class shall constitute a separate voting group for purposes of this Section 2.07. Except as otherwise provided in the restated articles of incorporation or the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast on the matter shall constitute a quorum of the voting group for action on that matter. Once a share is represented for any purpose at any Annual Meeting or Special 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 Meeting Record Date is or must be set for the adjourned meeting. If a quorum exists, except in the case of the election of directors, action on a matter shall be approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the restated articles of incorporation, these by-laws or the Wisconsin Business Corporation Law requires a greater number of affirmative votes. Unless otherwise provided in the restated articles of incorporation, each director shall be elected by a plurality of the votes cast by the shares entitled to vote in the election of directors at any Annual Meeting or Special Meeting at which a quorum is present. (b) The Board of Directors acting by resolution may postpone and reschedule any previously scheduled Annual Meeting or Special Meeting; provided, however, that a Demand Special Meeting shall not be postponed beyond the 100th day following the Delivery Date. Any Annual Meeting or Special Meeting may be adjourned from time to time, whether or not there is a quorum, (i) at any time, upon a resolution of shareholders if the votes cast in favor of such resolution by the holders of shares of each voting group entitled to vote on any matter theretofore properly brought before the meeting exceed the number of votes cast against such resolution by the holders of shares of each such voting group or (ii) at any time prior to the transaction of any business at such meeting, by the President or pursuant to a resolution of the Board of Directors. No notice of the time and place of adjourned meetings need be given except 6 as required by the Wisconsin Business Corporation Law. At any 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. 2.08. Conduct of Meetings. The President, and in his absence a Vice-President in the order provided under Section 4.06, and in their absence, any person chosen by the shareholders present shall call any Annual Meeting or Special Meeting to order and shall act as chairman of such 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 any Annual Meeting or Special Meeting, a shareholder entitled to vote may vote in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form, either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent of the corporation authorized to tabulate votes. An appointment is valid for 11 months from the date of its signing unless a different period is expressly provided in the appointment form. Unless otherwise provided in the proxy, a proxy may be revoked at any time before it is voted, either by written notice filed with the Secretary or the acting secretary of the meeting or by oral notice given by the shareholder to the presiding officer during the meeting. The presence of a shareholder who has filed his proxy shall not of itself constitute a revocation. 2.10. Voting of Shares. Each outstanding share shall be entitled to one vote upon each matter submitted to a vote at an Annual Meeting or Special Meeting, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the Wisconsin Business Corporation Law or by the restated articles of incorporation. 2.11. Acceptance of Instruments Showing Shareholder Action. If the name signed on a vote, consent, waiver or proxy appointment corresponds to the name of the shareholder, the corporation, if acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of a shareholder. If the name signed on a vote, consent, waiver or proxy appointment does not correspond to the name of a shareholder, the corporation may accept the vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder if any of the following apply: (a) The shareholder is an entity and the name signed purports to be that of an officer or agent of the entity. (b) The name purports to be that of a personal representative, administrator, executor, guardian or conservator representing the shareholder and, if the corporation requests, evidence of fiduciary status acceptable to the corporation is presented with respect to the vote, consent, waiver or proxy appointment. (c) 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 is presented with respect to the vote, consent, waiver or proxy appointment. 7 (d) 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 is presented with respect to the vote, consent, waiver or proxy appointment. (e) Two or more persons are the shareholder as co-tenants 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 co-owners. The corporation may reject a vote, consent, waiver or proxy appointment if the Secretary or other officer or agent of the corporation who is 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. 2.12. Waiver of Notice by Shareholders. A shareholder may waive any notice required by the Wisconsin Business Corporation Law, the restated articles of incorporation or these by-laws 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, contain the same information that would have been required in the notice under applicable provisions of the Wisconsin Business Corporation Law (except that the time and place of meeting need not be stated) and be delivered to the corporation for inclusion in the corporate records. A shareholder's attendance at any Annual Meeting or Special Meeting, in person or by proxy, waives objection to all 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; and (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. 2.13. Unanimous Consent without Meeting. Any action required or permitted by the restated articles of incorporation or these by-laws or any provision of the Wisconsin Business Corporation Law to be taken at an Annual Meeting or Special Meeting, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. 2.14. Notice of Shareholder Business and Nomination of Directors. (a) Annual Meetings. (i) Nominations of persons for election to the Board of Directors of the corporation and the proposal of business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the corporation's notice of meeting, (B) by or at the direction of the Board of Directors or (C) by any shareholder of the corporation who is a shareholder of record at the time of giving of notice provided for in this by-law and who is entitled to vote at the meeting and complies with the notice procedures set forth in this Section 2.14. 8 (ii) For nominations or other business to be properly brought before an Annual Meeting by a shareholder pursuant to clause (C) of paragraph (a)(i) of this Section 2.14, the shareholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a shareholder's notice shall be received by the Secretary of the corporation at the principal office of the corporation not less than 60 days nor more than 90 days prior to the last Thursday in the month of April; provided, however, that in the event that the date of the Annual Meeting is advanced by more than 30 days or delayed by more than 150 days from the last Thursday in the month of April, notice by the shareholder to be timely must be so received not earlier than the 90th day prior to the date of such Annual Meeting and not later than the close of business on the later of (x) the 60th day prior to such Annual Meeting and (y) the 10th day following the day on which public announcement of the date of such meeting is first made. Such shareholder's notice shall be signed by the shareholder of record who intends to make the nomination or introduce the other business (or his duly authorized proxy or other representative), shall bear the date of signature of such shareholder (or proxy or other representative) and shall set forth: (A) the name and address, as they appear on the corporation's books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the nomination or proposal is made; (B) the class and number of shares of the corporation which are beneficially owned by such shareholder or beneficial owner or owners; (C) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to make the nomination or introduce the other business specified in the notice; (D) in the case of any proposed nomination for election or re-election as a director, (I) the name and residence address of the person or persons to be nominated, (II) a description of all arrangements or understandings between such shareholder or beneficial owner or owners and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination is to be made by such shareholder, (III) such other information regarding each nominee proposed by such shareholder as would be required to be disclosed in solicitations of proxies for elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the nominee been nominated by the Board of Directors and (IV) the written consent of each nominee to be named in a proxy statement and to serve as a director of the corporation if so elected; and (E) in the case of any other business that such shareholder proposes to bring before the meeting, (I) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these by-laws, the language of the proposed amendment, (II) such shareholder's and beneficial owner's or owners' reasons for conducting such business at the meeting and (III) any material interest in such business of such shareholder and beneficial owner or owners. (iii) Notwithstanding anything in the second sentence of paragraph (a)(ii) of this Section 2.14 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the 9 increased Board of Directors made by the corporation at least 70 days prior to the last Thursday in the month of April, a shareholder's notice required by this Section 2.14 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary at the principal office of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporation. (b) Special Meetings. Only such business shall be conducted at a Special Meeting as shall have been described in the notice of meeting sent to shareholders pursuant to Section 2.04 of these by-laws. Nominations of persons for election to the Board of Directors may be made at a Special Meeting at which directors are to be elected pursuant to such notice of meeting (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the corporation who (A) is a shareholder of record at the time of giving of such notice of meeting, (B) is entitled to vote at the meeting and (C) complies with the notice procedures set forth in this Section 2.14. Any shareholder desiring to nominate persons for election to the Board of Directors at such a Special Meeting shall cause a written notice to be received by the Secretary of the corporation at the principal office of the corporation not earlier than 90 days prior to such Special Meeting and not later than the close of business on the later of (x) the 60th day prior to such Special Meeting and (y) the 10th day following the day on which public announcement is first made of the date of such Special Meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Such written notice shall be signed by the shareholder of record who intends to make the nomination (or his duly authorized proxy or other representative), shall bear the date of signature of such shareholder (or proxy or other representative) and shall set forth: (A) the name and address, as they appear on the corporation's books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the nomination is made; (B) the class and number of shares of the corporation which are beneficially owned by such shareholder or beneficial owner or owners; (C) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to make the nomination specified in the notice; (D) the name and residence address of the person or persons to be nominated; (E) a description of all arrangements or understandings between such shareholder or beneficial owner or owners and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination is to be made by such shareholder; (F) such other information regarding each nominee proposed by such shareholder as would be required to be disclosed in solicitations of proxies for elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the nominee been nominated by the Board of Directors; and (G) the written consent of each nominee to be named in a proxy statement and to serve as a director of the corporation if so elected. (c) General. (i) Only persons who are nominated in accordance with the procedures set forth in this Section 2.14 shall be eligible to serve as directors. Only such business shall be conducted at an Annual Meeting or Special Meeting as shall have been brought before such meeting in accordance with the procedures set forth in this Section 2.14. The chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 2.14 and, if any proposed nomination or business is not in compliance with this Section 2.14, to declare that such defective proposal shall be disregarded. 10 (ii) For purposes of this Section 2.14, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. (iii) Notwithstanding the foregoing provisions of this Section 2.14, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.14. Nothing in this Section 2.14 shall be deemed to limit the corporation's obligation to include shareholder proposals in its proxy statement if such inclusion is required by Rule 14a-8 under the Exchange Act. 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 nine (9), divided into three (3) classes: Class I - three (3) directors; Class II - three (3) directors; Class III - three (3) directors. 3.02. Term and Qualifications. At each Annual Meeting the successors to the class of directors whose terms shall expire at the time of such Annual Meeting shall be elected to hold office until the third succeeding Annual Meeting of shareholders, and until their successors are duly elected and qualified. A director may resign at any time by delivering written notice which complies with the Wisconsin Business Corporation Law to the Chairman of the Board or to the corporation. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. 3.03. Nominations. Nominations for the election of directors may only be made in accordance with the requirements of Section 2.14 hereof, which requirements are hereby incorporated by reference in this Section 3.03. 3.04. 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, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the Annual Meeting which precedes it, or such other suitable place as may be announced at such Annual Meeting. 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. 3.05. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President, Secretary or any two directors. The President or Secretary 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, and if no other place is fixed, the place of meeting shall be the principal office of the corporation in the State of Wisconsin. 11 3.06. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.04) shall be given by written notice delivered or communicated in person, by telegram, facsimile or other form of wire or wireless communication, or by mail or private carrier, to each director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, in each case not less than 48 hours prior to the time of the meeting. If mailed, such notice shall be deemed to be effective when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be effective when the telegram is delivered to the telegraph company. If notice is given by private carrier, such notice shall be deemed to be effective when the notice is delivered to the private carrier. Whenever any notice whatever is required to be given to any director of the corporation under the restated articles of incorporation or these by-laws or any provision of the Wisconsin Business Corporation 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 corporation shall retain any such waiver as part of the permanent corporate records. A director's attendance at or participation in a meeting waives any required notice to him of the meeting unless the director at the beginning of the meeting or promptly upon his 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. 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. 3.07. Quorum. Except as otherwise provided by the Wisconsin Business Corporation Law or by the restated articles of incorporation or these by-laws, a majority of the number of directors set forth in Section 3.01 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. 3.08. 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 the Wisconsin Business Corporation Law or by the restated articles of incorporation or these by-laws. 3.09. Conduct of Meetings. The Chairman of the Board, and in his absence, the President, and in his absence, a Vice-President in the order provided under Section 4.06, 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 any other person present to act as secretary of the meeting. Minutes of any regular or special meeting of the Board of Directors shall be prepared and distributed to each director. 12 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 any of the following occurs: (a) the director objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting business at the meeting; (b) the director's dissent or abstention from the action taken is entered in the minutes of the meeting; or (c) the director delivers written notice that complies with the Wisconsin Business Corporation Law of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. Such right to dissent or abstain shall not apply to a director who voted in favor of such action. 3.12. Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors set forth in Section 3.01 may create one or more committees, appoint members of the Board of Directors to serve on the committees and designate other members of the Board of Directors to serve as alternates. Alternate members of a committee shall take the place of any absent member or members at any meeting of such committee upon request of the President or upon request of the chairman of such meeting. Each committee shall have two or more members who shall, unless otherwise provided by the Board of Directors, serve at the pleasure of the Board of Directors. A committee may be authorized to exercise the authority of the Board of Directors, except that a committee may not do any of the following: (a) authorize distributions; (b) approve or propose to shareholders action that the Wisconsin Business Corporation Law requires to be approved by shareholders; (c) fill vacancies on the Board of Directors or, unless the Board of Directors provides by resolution that vacancies on a committee shall be filled by the affirmative vote of the remaining committee members, on any Board committee; (d) amend the corporation's restated articles of incorporation; (e) adopt, amend or repeal by-laws; (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; and (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 that the Board of Directors may authorize a committee to do so within limits prescribed by the Board of Directors. Unless otherwise provided by the Board of Directors in creating the committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of its authority. 13 3.13. Telephonic Meetings. Except as herein provided and notwithstanding any place set forth in the notice of the meeting or these by-laws, members of the Board of Directors (and any committee thereof) may participate in regular or special meetings by, or through the use of, any means of communication by which all participants may simultaneously hear each other, such as by conference telephone. If a meeting is conducted by such means, then at the commencement of such meeting the presiding officer shall inform the participating directors that a meeting is taking place at which official business may be transacted. Any participant in a meeting by such means shall be deemed present in person at such meeting. Notwithstanding the foregoing, no action may be taken at any meeting held by such means on any particular matter which the presiding officer determines, in his sole discretion, to be inappropriate under the circumstances for action at a meeting held by such means. Such determination shall be made and announced in advance of such meeting. 3.14. Unanimous Consent without Meeting. Any action required or permitted by the restated articles of incorporation or these by-laws or any provision of the Wisconsin Business Corporation Law to be taken by the Board of Directors (or any committee thereof) at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all members of the Board of Directors or of the committee, as the case may be, then in office. Such action shall be effective when the last director or committee member signs the consent, unless the consent specifies a different effective date. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a Chairman of the Board, a President, such number of Vice-Presidents as the Board of Directors shall elect from time to time by affirmative vote of a majority of the number of directors present at a meeting at which a quorum is in attendance, 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. The Board of Directors may also authorize any duly appointed officer to appoint one or more officers or assistant officers. Any two or more offices may be held by the same person. 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. 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; Vacancies. The Board of Directors may remove any officer and, unless restricted by the Board of Directors or these by-laws, an officer may remove any officer or assistant officer appointed by that officer, at any time, with or without cause and notwithstanding the contract rights, if any, of the officer removed. Election or appointment shall not of itself create contract rights. An officer may resign at any time by delivering notice to the corporation that complies with the Wisconsin Business Corporation Law. The resignation shall be effective when the notice is delivered, unless the notice specifies a later effective date and the corporation 14 accepts the later effective date. 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. If a resignation of an officer is effective at a later date as contemplated by this Section 4.03, the Board of Directors may fill the pending vacancy before the effective date if the Board provides that the successor may not take office until the effective date. 4.04. Chairman of the Board. The Chairman of the Board shall, when present, preside at all meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors from time to time. 4.05. President. The President shall be the principal 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 Annual Meetings and Special Meetings. 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 President and such other duties as may be prescribed by the Board of Directors from time to time. 4.06. The Vice-Presidents. 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 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 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 and have such authority as from time to time may be delegated or assigned to him by the President or by 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 his authority to act in the stead of the President. 4.07. The Secretary. The Secretary shall: (a) keep the minutes of all Annual Meetings and Special Meetings and all meetings of the Board of Directors in one or more books provided for that purpose (including records of actions taken without a meeting); (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by the Wisconsin Business Corporation 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 15 of which on behalf of the corporation under its seal is duly authorized; (d) maintain a record of the shareholders of the corporation, in the form that permits preparation of a list of the names and addresses of all shareholders, by class or series of shares and showing the number and class or series of shares held by each 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. 4.08. The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) maintain appropriate accounting records; (c) 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 (d) 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. 4.09. 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. 4.10. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint, or to authorize any duly appointed officer of the corporation 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 or the appointing officer shall have the power to perform all 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 or the appointing officer. 4.11. 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. 16 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 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 in 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. 17 5.06. No Nominee Procedures. The corporation has not established, and nothing in these by-laws shall be deemed to establish, any procedure by which a beneficial owner of the corporation's shares that are registered in the name of a nominee is recognized by the corporation as the shareholder under Section 180.0723 of the Wisconsin Business Corporation Law. 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 the Wisconsin Business Corporation 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 powers 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 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. 18 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 Board of Directors may authorize shares to be issued for consideration consisting 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. Before the corporation issues shares, the Board of Directors shall determine that the consideration received or to be received for the shares to be issued is adequate. In the absence of a resolution adopted by the Board of Directors expressly determining that the consideration received or to be received is adequate, Board approval of the issuance of the shares shall be deemed to constitute such a determination. The determination of the Board of Directors is conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares are validly issued, fully paid and nonassessable. The corporation may place in escrow shares issued in whole or in part for a contract for future services or benefits, a promissory note, or other property to be issued in the future, or make other arrangements to restrict the transfer of the shares, and may credit distributions in respect of the shares against their purchase price, until the services are performed, the benefits or property are received or the promissory note is paid. If the services are not performed, the benefits or property are not received or the promissory note is not paid, the corporation may cancel, in whole or in part, the shares escrowed or restricted and the distributions credited. 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. ARTICLE VII. SEAL 7.01. The Board of Directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation and the state of incorporation and the words, "Corporate Seal." ARTICLE VIII. AMENDMENTS 8.01. By Shareholders. The affirmative vote of shareholders possessing at least seventy-five percent of the voting power of the then outstanding shares of all classes of stock of the corporation generally possessing voting rights in elections of directors, considered for this purpose as one class, shall be required to amend, alter, change or repeal, or to adopt any provision inconsistent with, Sections 2.01 to 2.05 inclusive of Article II of these by-laws, Sections 8.01 to 8.03 inclusive of Article VIII of these by-laws and Sections 9.01 to 9.11 inclusive of Article IX of these by-laws. Subject to the foregoing and except as otherwise provided in the restated articles of incorporation of the corporation, the by-laws of this 19 corporation may be altered, amended, changed or repealed by the affirmative vote of shareholders possessing at least a majority of the voting power of the shares of all classes of stock of the corporation generally possessing voting rights in elections of directors considered for this purpose as one class, which are present or represented at any Annual Meeting or Special Meeting at which a quorum is present. 8.02. By Directors. A Requisite Vote (as defined herein) of the directors shall be required to alter, amend, change or repeal, or to adopt any provision inconsistent with, Sections 2.01 to 2.05 inclusive, Section 2.07 and Section 2.14 of Article II of these by-laws, Sections 8.01 to 8.03 inclusive of Article VIII of these by-laws and Sections 9.01 to 9.11 inclusive of Article IX of these by-laws. For purposes of this Section 8.02, "Requisite Vote" shall mean the affirmative vote of at least two-thirds of the directors then in office plus one director. Subject to the foregoing and except as otherwise provided in the restated articles of incorporation of the corporation, the by-laws of this corporation may be altered, amended, changed or repealed by the Board of Directors by the affirmative vote of a majority of the number of directors present at any meeting at which a quorum is present; provided, however, that the shareholders in altering, adopting, amending, changing or repealing a particular by-law may provide therein that the Board of Directors may not amend, repeal or readopt that by-law. 8.03. 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 votes 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. ARTICLE IX. INDEMNIFICATION 9.01. Certain Definitions. All capitalized terms used in this Article IX and not otherwise hereinafter defined in this Section 9.01 shall have the meaning set forth in Section 180.0850 of the Statute. The following capitalized terms (including any plural forms thereof) used in this Article IX shall be defined as follows: (a) "Affiliate" shall include, without limitation, any corporation, partnership, joint venture, employee 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) "Authority" shall mean the entity selected by the Director or Officer to determine his or her right to indemnification pursuant to Section 9.04. 20 (c) "Board" shall mean the entire then elected and serving Board of Directors of the Corporation, including all members thereof who are Parties to the subject Proceeding or any related Proceeding. (d) "Breach of Duty" shall mean the Director or Officer breached or failed to perform his or her duties to the Corporation and his or her breach of or failure to perform those duties is determined, in accordance with Section 9.04, to constitute misconduct under Section 180.0851(2)(a) l, 2, 3 or 4 of the Statute. (e) "Corporation," as used herein and as defined in the Statute and incorporated by reference into the definitions of certain other capitalized terms used herein, shall mean this Corporation, including, without limitation, any successor corporation or entity to this Corporation by way of merger, consolidation or acquisition of all or substantially all of the capital stock or assets of this Corporation. (f) "Director or Officer" shall have the meaning set forth in the Statute; provided, that, for purposes of this Article IX, 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, employee or agent of an Affiliate shall be so serving at the request of the Corporation. (g) "Disinterested Quorum" shall mean a quorum of the Board who are not Parties to the subject Proceeding or any related Proceeding. (h) "Party" shall have the meaning set forth in the Statute; provided, that, for purposes of this Article IX, the term "Party" shall also include any Director or Officer or employee of the Corporation who is or was a witness in a Proceeding at a time when he or she has not otherwise been formally named a Party thereto. (i) "Proceeding" shall have the meaning set forth in the Statute; provided, that, in accordance with Section 180.0859 of the Statute and for purposes of this Article IX, the term "Proceeding" shall also include all Proceedings (i) brought under (in whole or in part) the Securities Act of 1933, as amended, the Exchange Act, their respective state counterparts, and/or any rule or regulation promulgated under any of the foregoing; (ii) brought before an Authority or otherwise to enforce rights hereunder; (iii) any appeal from a Proceeding; and (iv) any Proceeding in which the Director or Officer is a plaintiff or petitioner because he or she is a Director or Officer; provided, however, that any such Proceeding under this subsection (iv) must be authorized by a majority vote of a Disinterested Quorum. (j) "Statute" shall mean Sections 180.0850 through 180.0859, inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes, as the same shall then be in effect, 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 the Statute permitted or required the Corporation to provide prior to such amendment. 21 9.02. Mandatory Indemnification. To the fullest extent permitted or required by the Statute, the Corporation shall indemnify a Director or Officer against all Liabilities incurred by or on behalf of such Director or Officer in connection with a Proceeding in which the Director or Officer is a Party because he or she is a Director or Officer. 9.03. Procedural Requirements. (a) A Director or Officer who seeks indemnification under Section 9.02 shall make a written request therefor to the Corporation. Subject to Section 9.03(b), within 60 days of the Corporation's receipt of such request, the Corporation shall pay or reimburse the Director or Officer for the entire amount of Liabilities incurred by the Director or Officer in connection with the subject Proceeding (net of any Expenses previously advanced pursuant to Section 9.05). (b) No indemnification shall be required to be paid by the Corporation pursuant to Section 9.02 if, within such 60-day period, (i) a Disinterested Quorum, by a majority vote thereof, determines that the Director or Officer requesting indemnification engaged in misconduct constituting a Breach of Duty or (ii) a Disinterested Quorum cannot be obtained. (c) In either case of nonpayment pursuant to Section 9.03(b), the Board shall immediately authorize by resolution that an Authority, as provided in Section 9.04, determine whether the Director's or Officer's conduct constituted a Breach of Duty and, therefore, whether indemnification should be denied hereunder. (d) (i) If the Board does not authorize an Authority to determine the Director's or Officer's right to indemnification hereunder within such 60-day period and/or (ii) if indemnification of the requested amount of Liabilities is paid by the Corporation, then it shall be conclusively presumed for all purposes that a Disinterested Quorum has affirmatively determined that the Director or Officer did not engage in misconduct constituting a Breach of Duty and, in the case of subsection (i) above (but not subsection (ii)), indemnification by the Corporation of the requested amount of Liabilities shall be paid to the Director or Officer immediately. 9.04. Determination of Indemnification. (a) If the Board authorizes an Authority to determine a Director's or Officer's right to indemnification pursuant to Section 9.03, then the Director or Officer requesting indemnification shall have the absolute discretionary authority to select one of the following as such Authority: (i) An independent legal counsel; provided, that such counsel shall be mutually selected by such Director or Officer and by a majority vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be obtained, then by a majority vote of the Board; (ii) A panel of three arbitrators selected from the panels of arbitrators of the American Arbitration Association in Wisconsin; provided, that (A) one arbitrator shall be selected by such Director or Officer, the second arbitrator shall be selected by a majority 22 vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be obtained, then by a majority vote of the Board, and the third arbitrator shall be selected by the two previously selected arbitrators, and (B) in all other respects, such panel shall be governed by the American Arbitration Association's then existing Commercial Arbitration Rules; or (iii) A court pursuant to and in accordance with Section 180.0854 of the Statute. (b) In any such determination by the selected Authority there shall exist a rebuttable presumption that the Director's or Officer's conduct did not constitute a Breach of Duty and that indemnification against the requested amount of Liabilities is required. The burden of rebutting such a presumption by clear and convincing evidence shall be on the Corporation or such other party asserting that such indemnification should not be allowed. (c) The Authority shall make its determination within 60 days of being selected and shall submit a written opinion of its conclusion simultaneously to both the Corporation and the Director or Officer. (d) If the Authority determines that indemnification is required hereunder, the Corporation shall pay the entire requested amount of Liabilities (net of any Expenses previously advanced pursuant to Section 9.05), including interest thereon at a reasonable rate, as determined by the Authority, within 10 days of receipt of the Authority's opinion; provided, that, if it is determined by the Authority that a Director or Officer is entitled to indemnification against Liabilities incurred in connection with some claims, issues or matters, but not as to other claims, issues or matters, involved in the subject Proceeding, the Corporation shall be required to pay (as set forth above) only the amount of such requested Liabilities as the Authority shall deem appropriate in light of all of the circumstances of such Proceeding. (e) The determination by the Authority that indemnification is required hereunder shall be binding upon the Corporation regardless of any prior determination that the Director or Officer engaged in a Breach of Duty. (f) All Expenses incurred in the determination process under this Section 9.04 by either the Corporation or the Director or Officer, including, without limitation, all Expenses of the selected Authority, shall be paid by the Corporation. 9.05. Mandatory Allowance of Expenses. (a) The Corporation shall pay or reimburse from time to time or at any time, within 10 days after the receipt of the Director's or Officer's written request therefor, the reasonable Expenses of the Director or Officer as such Expenses are incurred; provided, the following conditions are satisfied: (i) The Director or Officer furnishes to the Corporation an executed written certificate affirming his or her good faith belief that he or she has not engaged in 23 misconduct which constitutes a Breach of Duty; and (ii) The Director or Officer furnishes to the Corporation an unsecured executed written agreement to repay any advances made under this Section 9.05 if it is ultimately determined by an Authority that he or she is not entitled to be indemnified by the Corporation for such Expenses pursuant to Section 9.04. (b) If the Director or Officer must repay any previously advanced Expenses pursuant to this Section 9.05, such Director or Officer shall not be required to pay interest on such amounts. 9.06. Indemnification and Allowance of Expenses of Certain Others. (a) The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify a director or officer of an Affiliate (who is not otherwise serving as a Director or Officer) against all Liabilities, and shall advance the reasonable Expenses, incurred by such director or officer in a Proceeding to the same extent hereunder as if such director or officer incurred such Liabilities because he or she was a Director or Officer, if such director or officer is a Party thereto because he or she is or was a director or officer of the Affiliate. (b) The Corporation shall indemnify an employee of the Corporation who is not a Director or Officer, to the extent 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 employee was a Party because he or she was an employee of the Corporation. (c) The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify (to the extent not otherwise provided in Section 9.06(b) hereof) against Liabilities incurred by, and/or provide for the allowance of reasonable Expenses of, an employee or authorized agent of the Corporation acting within the scope of his or her duties as such and who is not otherwise a Director or Officer. 9.07. Insurance. The Corporation may purchase and maintain insurance on behalf of a Director or Officer or any individual who is or was an employee or authorized agent of the Corporation against any Liability asserted against or incurred by such individual in his or her capacity as such or arising from his or her status as such, regardless of whether the Corporation is required or permitted to indemnify against any such Liability under this Article IX. 9.08. Notice to the Corporation. A Director, Officer or employee of the Corporation shall promptly notify the Corporation in writing when he or she has actual knowledge of a Proceeding which may result in a claim of indemnification against Liabilities or allowance of Expenses hereunder, but the failure to do so shall not relieve the Corporation of any liability to the Director, Officer or employee hereunder unless the Corporation shall have been irreparably prejudiced by such failure (as determined, in the case of Directors or Officers only, by an Authority selected pursuant to Section 9.04(a)). 24 9.09. Severability. If any provision of this Article IX shall be deemed invalid or inoperative, or if a court of competent jurisdiction determines that any of the provisions of this Article IX contravene public policy, this Article IX shall be construed so that the remaining provisions shall not be affected, but shall remain in full force and effect, and any such provisions which are invalid or inoperative or which contravene public policy shall be deemed, without further action or deed by or on behalf of the Corporation, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable; it being understood that it is the Corporation's intention to provide the Directors and Officers with the broadest possible protection against personal liability allowable under the Statute. 9.10. Nonexclusivity of Article IX. The rights of a Director, Officer or employee of the Corporation (or any other person) granted under this Article IX shall not be deemed exclusive of any other rights to indemnification against Liabilities or allowance of Expenses which the Director, Officer or employee (or such other person) may be entitled to under any written agreement, Board resolution, vote of shareholders of the corporation or otherwise, including, without limitation, under the Statute. Nothing contained in this Article IX shall be deemed to limit the Corporation's obligations to indemnify against Liabilities or allow Expenses to a Director, Officer or employee of the Corporation under the Statute. 9.11. Contractual Nature of Article IX; Repeal or Limitation of Rights. This Article IX shall be deemed to be a contract between the Corporation and each Director, Officer and employee of the Corporation and any repeal or other limitation of this Article IX or any repeal or limitation of the Statute or any other applicable law shall not limit any rights of indemnification against Liabilities or allowance of Expenses then existing or arising out of events, acts or omissions occurring prior to such repeal or limitation, including, without limitation, the right to indemnification against Liabilities or allowance of Expenses for Proceedings commenced after such repeal or limitation to enforce this Article IX with regard to acts, omissions or events arising prior to such repeal or limitation. 25 EX-10.2 5 pdm93d.txt AMENDMENT TO AMENDED/RESTATED EMPMT AGRMT AMENDMENT NO. 3 TO THE WILLIAM D. GEHL/GEHL COMPANY AMENDED AND RESTATED EMPLOYMENT AGREEMENT DATED AS OF DECEMBER 19, 1997 THIS AMENDMENT to the Amended and Restated Employment Agreement, dated as of December 19, 1997, as amended on December 18, 1998 and April 19, 2000 (as so amended, the "Employment Agreement"), by and between Gehl Company ("GEHL"), a Wisconsin corporation with its principal place of business in West Bend, Wisconsin, and William D. Gehl ("Executive"), is made as of June 13, 2001. RECITALS WHEREAS, GEHL and Executive have previously entered into the Employment Agreement and wish to enter into this Amendment to amend the Employment Agreement as provided herein. NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the parties agree as follows: Section 2 of the Employment Agreement shall be deleted in its entirety and replaced with the following: Executive's "term of employment," as this phrase is used throughout this Agreement, shall be for a period commencing on January 1, 1999 and ending on June 13, 2004 unless Executive's employment is terminated earlier with the consequences described herein in which event the term of employment shall extend through the date of such termination. Section 5 of the Employment Agreement shall be revised by adding the following new paragraph after subsection (e) and prior to the paragraph beginning "In addition": Executive shall also receive, at the expense of GEHL, outplacement services, on an individualized basis at a level of service commensurate with Executive's most senior status with GEHL during the 180-day period prior to the date of the Change in Control, provided by a nationally recognized senior executive placement firm selected by GEHL with the consent of Executive, provided that the cost to GEHL of such services shall not exceed 20% of Executive's Current Base Salary. In the alternative, Executive, at his election, may choose to receive the net amount of these services, up to a maximum of $15,000, to be paid as a lump sum within 30 days of the Termination Date as outlined above. Section 5 of the Employment Agreement shall be further revised by adding the following new subsection (vii) to the definition (the "Definition") of "Good Reason": (vii) Any voluntary termination of employment by Executive for any reason where the notice of termination is delivered by Executive to GEHL at any time within ninety (90) days following the six-month anniversary of the Change in Control. Section 5 of the Employment Agreement shall be further revised by deleting the word "or" from the end of subsection (v) to the Definition and by deleting the period (".") from the end of subsection (vi) to the Definition and replacing it with a semicolon followed by the word "or" ("; or"). The following new Section 18 shall be added to the Employment Agreement: Section 18. Expenses and Interest. If (i) a dispute arises with respect to the enforcement of Executive's rights under this Agreement, (ii) any legal or arbitration proceeding shall be brought to enforce or interpret any provision contained herein or to recover damages for breach hereof, or (iii) any tax audit or proceeding is commenced that is attributable in part to the application of Section 4999 of the Code, in any case so long as Executive is not acting in bad faith, then GEHL shall reimburse Executive for any reasonable attorney's fees and necessary costs and disbursements incurred as a result of such dispute, legal or arbitration proceeding or tax audit or proceeding ("Expenses"), and prejudgment interest on any money judgment or arbitration award obtained by Executive calculated at the rate of interest announced by M&I Bank, Milwaukee, Wisconsin, from time to time as its prime or base lending rate from the date that payments to Executive should have been made under this Agreement. Within ten days after Executive's written request therefor, GEHL shall pay to Executive, or such person or entity as Executive may designate in writing to GEHL, Executive's reasonable Expenses in advance of the final disposition or conclusion of any such dispute, legal or arbitration proceeding. IN WITNESS WHEREOF, GEHL has caused this Amendment to be executed by its duly authorized officer, and Executive has hereunto set his hand, all as of the date set forth above. GEHL COMPANY EXECUTIVE By: /s/ Fred M. Butler /s/ William D. Gehl ----------------------------------- ----------------------------------- Name: Fred M. Butler William D. Gehl --------------------------------- Title: Director -------------------------------- 2 EX-10.3 6 pdm93e.txt AMENDMENT TO CHANGE IN CONTROL AMENDMENT NO. 1 TO THE GEHL COMPANY/KEYES CHANGE IN CONTROL AND SEVERANCE AGREEMENT DATED AS OF NOVEMBER 27, 2000 THIS AMENDMENT to the Change in Control and Severance Agreement (the "Agreement"), made and entered into as of the 27th day of November, 2000, by and between Gehl Company ("GEHL"), a Wisconsin corporation, and Daniel M. Keyes (the "Executive"), is made as of June 13, 2001. RECITALS WHEREAS, GEHL and the Executive have previously made and entered into the Agreement and wish to enter into this Amendment amending the Agreement as provided herein. NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the parties agree as follows: Section 1(c) of the Agreement shall be revised by deleting the word "and" from the end of such section. Section 1(d) of the Agreement shall be deleted in its entirety and replaced with the following: Two (2) times the sum of (i) the Current Base Salary and (ii) the highest bonus amount earned by the Executive in any of the five fiscal years which precede the year in which the Termination Date occurs, including any amounts deferred; and Section 1(e) of the Agreement shall be deleted in its entirety and replaced with the following: The present value of the Executive's benefits under Section 2 of the Executive's most current Supplemental Retirement Benefit Agreement using a discount rate equal to the "GATT" interest rate that would be used by the Gehl Company Retirement Income Plan "B" to calculate the amount of a lump sum distribution to be made on the same date as the payment hereunder; provided, however, that if the Executive's Termination Date occurs after a Change in Control but prior to January 1, 2002, then the "Average Monthly Compensation" of the Executive under Section 1(a) of such Supplemental Retirement Benefit Agreement for purposes of this provision shall be deemed to be $12,500. Section 1 of the Agreement shall be revised by adding the following new paragraph after subsection (e) and before the paragraph beginning "In addition": The Executive shall also receive, at the expense of GEHL, outplacement services, on an individualized basis at a level of service commensurate with the Executive's most senior status with GEHL during the 180-day period prior to the date of the Change in Control, provided by a nationally recognized senior executive placement firm selected by GEHL with the consent of the Executive, provided that the cost to GEHL of such services shall not exceed 20% of the Executive's Current Base Salary. In the alternative, the Executive, at his election, may choose to receive a lump sum cash payment of $15,000 to be paid within 30 days of the Termination Date as outlined above. IN WITNESS WHEREOF, GEHL has caused this Amendment to be executed by its duly authorized officer, and Executive has hereunto set his hand, all as of the date set forth above. GEHL COMPANY EXECUTIVE By: /s/ William D. Gehl /s/ Daniel M. Keyes ---------------------------------- ------------------------------------ Name: William D. Gehl Daniel M. Keyes -------------------------------- Title: President ------------------------------- 2 EX-10.4 7 pdm93f.txt FORM OF AMENDMENT AMENDMENT NO. 1 TO THE GEHL COMPANY/_______________ CHANGE IN CONTROL AND SEVERANCE AGREEMENT DATED AS OF __________________ THIS AMENDMENT to the Change in Control and Severance Agreement (the "Agreement"), made and entered into as of the _____ day of _____________ by and between Gehl Company ("GEHL"), a Wisconsin corporation, and ______________________ (the "Executive"), is made as of June 13, 2001. RECITALS WHEREAS, GEHL and the Executive have previously made and entered into the Agreement and wish to enter into this Amendment amending the Agreement as provided herein. NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the parties agree as follows: Section 1(c) of the Agreement shall be revised by deleting the word "and" from the end of such section. Section 1(d) of the Agreement shall be deleted in its entirety and replaced with the following: Two (2) times the sum of (i) the Current Base Salary and (ii) the highest bonus amount earned by the Executive in any of the five fiscal years which precede the year in which the Termination Date occurs, including any amounts deferred; and Section 1 of the Agreement shall be revised by adding the following new paragraph after subsection (e) and before the paragraph beginning "In addition": The Executive shall also receive, at the expense of GEHL, outplacement services, on an individualized basis at a level of service commensurate with the Executive's most senior status with GEHL during the 180-day period prior to the date of the Change in Control, provided by a nationally recognized senior executive placement firm selected by GEHL with the consent of the Executive, provided that the cost to GEHL of such services shall not exceed 20% of the Executive's Current Base Salary. In the alternative, the Executive, at his election, may choose to receive that net amount, up to a maximum of $15,000, to be paid as a lump sum within 30 days of the Termination Date as outlined above. IN WITNESS WHEREOF, GEHL has caused this Amendment to be executed by its duly authorized officer, and Executive has hereunto set his hand, all as of the date set forth above. GEHL COMPANY EXECUTIVE By: -------------------------------- ------------------------------------ Name: William D. Gehl ______________________ ------------------------------ Title: President EX-10.5 8 pdm93g.txt FORM OF RETENTION AGREEMENT RETENTION AGREEMENT This retention Agreement (this "Agreement") is made and entered into as of June 13, 2001 by and between Gehl Company, a Wisconsin corporation (the "Company") and __________________ (the "Executive"). 1. Purpose. The purpose of this Agreement is to provide to the Executive a financial incentive to agree (i) to provide such additional services as are requested by the Company to enable the Company to prepare for, evaluate and negotiate a potential Change of Control Transaction (as defined herein) and (ii) to remain employed with the Company or, in the event a Change of Control Transaction has occurred, with the Company or the purchaser of the Company or any affiliate of such purchaser (collectively, the "Purchaser"), until March 31, 2002. The commitment of the Executive to provide additional services in connection with a Change of Control Transaction and to remain employed with the Company or the Purchaser until March 31, 2002, has been deemed by the Board of Directors of the Company to be in the best interests of the Company and its shareholders in connection with the consideration of a potential Change of Control Transaction. 2. Change of Control Transaction. For the purpose of this Agreement, the term "Change of Control Transaction " means any of the following: a. securities of the Company representing 25% or more of the combined voting power of the Company's then outstanding voting securities are acquired pursuant to a tender offer or an exchange offer; or b. the shareholders of the Company approve a merger or consolidation of the Company with any other corporation as a result of which less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity are owned by the former shareholders of the Company (other than a shareholder who is an "affiliate," as defined under rules promulgated under the Securities Act of 1933, as amended, of any party to such consolidation or merger); or c. the shareholders of the Company approve the sale of substantially all of the Company's assets to a corporation which is not a wholly-owned subsidiary of the Company; or d. any person becomes the "beneficial owner," as defined under rules promulgated under the Securities Exchange Act of 1934, as amended, directly or indirectly of securities of the Company representing twenty-five (25%) or more of the combined voting power of the Company's then outstanding securities the effect of which (as determined by the Company's Board of Directors (the "Board")) is to take over control of the Company. 3. Duties of Executive. In consideration for the payment provided to the Executive hereunder, the Executive hereby agrees: a. to remain employed with the Company or, in the event a Change of Control Transaction has occurred, with the Company or the Purchaser, until March 31, 2002; and b. to provide such services as may be reasonably requested by the Company to assist the Company in preparing for, evaluating and, if deemed by the Board of Directors of the Company to be in the best interests of the Company and its shareholders, negotiating and consummating a Change of Control Transaction; and c. in the event a Change of Control Transaction occurs, to provide such services (consistent with the Executive's role immediately prior to the Change of Control Transaction) as may be reasonably requested by the Purchaser to assist in any transition of management, personnel or operations of the Company resulting from such Change of Control Transaction; and d. for a period of three months following the earlier to occur of the dates provided in Section 4(a)(i), (ii) and (iii) below, to not be employed by any other business (excluding the Company and/or the Purchaser) that is a direct competitor of the Company as it relates to a major product line of the Company; provided, however, that the Executive shall not be obligated to perform the covenants of this Section 3(d) unless the Retention Bonus (as defined below) provided in Section 4 hereof is paid to the Executive pursuant to the terms set forth in such section. 4. Consideration. In consideration for fulfillment by the Executive of Executive's duties hereunder, the Company and the Executive hereby agree as follows: a. The Company agrees to pay to the Executive a cash retention bonus (the "Retention Bonus") equal in value to nine (9) months of the Executive's Monthly Base Salary (as defined below). Such amount (if it is to be paid as provided herein) shall be paid on the earlier to occur of (i) March 31, 2002 (provided Executive has remained in the employment of the Company or the Purchaser until such date irrespective of whether or not a Change of Control Transaction has been consummated); (ii) such date that Executive's employment with the Company or, in the event a Change of Control Transaction occurs, with the Company or the Purchaser terminates prior to March 31, 2002 for any reason other than death or disability of the Executive, termination of employment by the Company or the Purchaser, as the case may be, for Cause (as defined herein), or voluntary separation from employment by the Executive other than as contemplated in Section 4(a)(iii); or (iii) such date that Executive's employment with the Company or, in the event a Change of Control Transaction occurs, with the Company or the Purchaser is terminated by the Executive prior to March 31, 2002 for Good Reason (as defined in Section 4(d)). b. In the event the Executive's employment with the Company or the Purchaser is terminated due to his death or disability prior to the earlier to occur of the dates provided in Section 4(a)(i), (ii) and (iii) above, the Company agrees to pay to the Executive or his estate an amount in cash equal to the Retention Bonus multiplied by a fraction the denominator of which is the number of calendar days from the date hereof to and including -2- March 31, 2002 and the numerator of which is the number of calendar days from the date hereof to and including the date the Executive died or became disabled. For the purposes of this Paragraph 4, the term "disability" means the Executive's absence from, or his inability to perform, his duties hereunder on a full-time basis for a period of three (3) consecutive months or more than three (3) months in the aggregate prior to March 31, 2002 due to his physical or mental illness or injury, whether or not such illness or injury is job-related. c. "Cause" means termination by action of the Board of Directors of the Company or the Purchaser, as the case may be, because of the willful and continued failure of the Executive to fulfill his obligations as an officer of the Company (other than such failure resulting from the Executive's death or disability) or because of serious willful misconduct by the Executive, as, for example, the commission by the Executive of a felony or the perpetration by the Executive of a common-law fraud against the Company or the Purchaser, as the case may be. d. "Good Reason" means the occurrence of any one of the following events or conditions: i. the removal of the Executive from, or any failure to re-elect or reappoint the Executive to, any of the positions held with the Company on the date hereof or any other positions with the Company to which the Executive shall thereafter be elected, appointed or assigned, except in connection with the termination of his employment for Cause or as a result of his death or disability; or ii. a good faith determination by the Executive that there has been a significant adverse change, without the Executive's written consent, in the Executive's working conditions or status from such working conditions or status in effect on the date hereof, including but not limited to (A) a significant change in the nature or scope of the Executive's authority, powers, functions, duties or responsibilities, or (B) a significant reduction in the level of support services, staff, secretarial and other assistance, office space and accoutrements; or iii. any material breach by the Company or the Purchaser of any provision of this Agreement; or iv. the failure of the Company to obtain an agreement, satisfactory to the Executive, from any successor or assign of the Company, to assume and agree to perform this Agreement; or v. the Company's or the Purchaser's requiring the Executive to be based at any office or location which is not within a fifty (50) mile radius of West Bend, Wisconsin, except for travel reasonably required in the performance of the Executive's responsibilities and consistent with past practice, without the Executive's consent. -3- For purposes of this Section, any good faith determination of Good Reason made by the Executive shall be conclusive. e. "Monthly Base Salary" means the Executive's monthly gross rate of pay as of the date hereof, including holiday and vacation pay, sick leave compensation, salary reduction contributions made on behalf of the Executive to tax-deferred retirement plans and pre-tax welfare benefit plans, and any amounts transferred with respect to the month to non-qualified deferred compensation plans sponsored by the Company. 5. Not Employment Agreement. This Agreement is not and shall not be construed as an employment agreement. Subject to the obligations to pay the Retention Bonus to the Executive pursuant to Section 4 hereof, the Company or Purchaser, as the case may be, may at any time dismiss the Executive from employment. 6. Severability. The provisions of this Agreement shall be regarded as divisible, and if any of such provisions or any part hereof are declared invalid or unenforceable by a court of competent jurisdiction, the validity and enforceability of the remainder of such provisions or parts thereof and the applicability thereof shall not be affected thereby. 7. Contents of Agreement; Amendment. This Agreement sets forth the entire understanding between the parties hereto with respect to the subject matter hereof, but does not affect the terms or interpretation of any other agreements existing between the Company and the Executive. This Agreement may not be amended or modified at any time except by written instrument executed by the Company and the Executive. 8. Withholding. The Company shall be entitled to withhold from amounts to be paid to the Executive hereunder any federal, state or local withholding or other taxes or charges which it is from time to time required to withhold. 9. Assignment; Parties in Interest. This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law or with the written consent of the parties hereto. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. 10. Governing Law. This Agreement and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Wisconsin. 11. Notice. Notices given pursuant to this Agreement shall be in writing and shall be deemed given when actually received by the Executive or actually received by the Company or the Purchaser, as the case may be. If mailed, such notices shall be mailed by United States registered or certified mail, return receipt requested, addressee only, postage prepaid. 12. Headings. The headings herein contained are for reference only and shall not affect the meaning or interpretation of any provision of this Agreement. -4- IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Executive has hereunto set his hand, all as of the date set forth above. GEHL COMPANY EXECUTIVE By: -------------------------------- ------------------------------------- Name: Name: Title: -5- -----END PRIVACY-ENHANCED MESSAGE-----