-----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, UpUyhneQuVytNar9uP61GsFccXBTtVDOFLo3zuNl/5DtZSmj878BioRz+ps3jWK5 AQ8pb76W2+o5aCUwlVP+HQ== 0000856386-98-000018.txt : 19980812 0000856386-98-000018.hdr.sgml : 19980812 ACCESSION NUMBER: 0000856386-98-000018 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 19980627 FILED AS OF DATE: 19980811 SROS: NASD 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: 98682190 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 GEHL COMPANY 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 27, 1998 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from.............. to ................... Commission file number 0-18110 GEHL COMPANY (Exact name of registrant as specified in its charter) Wisconsin 39-0300430 (State or other jurisdiction of incorporation (I.R.S. Employer or organization) Identification No.) 143 Water Street, West Bend, WI 53095 (Address of principal executive office) (zip code) (414) 334-9461 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. Class Outstanding at June 27, 1998 Common Stock, $.10 Par Value 6,401,824 GEHL COMPANY FORM 10-Q June 27, 1998 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 27, 1998 and June 28, 1997 . . . . . . . . . . . . . . . . 3 Condensed Consolidated Balance Sheets at June 27, 1998, December 31, 1997, and June 28, 1997 . . . . . . . 4 Condensed Consolidated Statements of Cash Flows for the Six-Month Periods Ended June 27, 1998 and June 28, 1997 . . . . . . . . . . . . . . . . . . 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. Quantitive and Qualitative Disclosures about Market Risk 11 PART II. - OTHER INFORMATION: Item 4. Submission of Matters to a Vote of Security Holders 11 Item 5. Other Information . . . . . . . . . . . . . . . 12 Item 6. Exhibits and Reports on Form 8-K . . . . . . . 12 SIGNATURES . 13 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 27, June 28, June 27, June 28, 1998 1997 1998 1997 NET SALES $ 75,231 $ 51,592 $136,519 $ 95,267 Cost of goods sold 54,056 36,045 99,493 66,737 -------- -------- -------- -------- GROSS PROFIT 21,175 15,547 37,026 28,530 Selling, general and administrative expenses 11,676 8,951 22,549 17,783 -------- -------- -------- -------- INCOME FROM OPERATIONS 9,499 6,596 14,477 10,747 Interest expense (1,251) (459) (2,427) (927) Interest income 407 339 753 661 Other expense, net (578) (406) (596) (459) -------- -------- -------- -------- INCOME BEFORE INCOME TAXES 8,077 6,070 12,207 10,022 Income tax provision 2,867 2,185 4,333 3,608 -------- -------- -------- -------- NET INCOME $ 5,210 $ 3,885 $ 7,874 $ 6,414 ======== ======== ======== ======== EARNINGS PER SHARE Diluted $ .78 $ .60 $ 1.18 $ 1.00 Basic $ .81 $ .63 $ 1.24 $ 1.04
The accompanying notes are an integral part of the financial statements. GEHL COMPANY AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (in thousands, except share data)
June 27, December 31, June 28, 1998 1997 1997 ASSETS (Unaudited) (Unaudited) Cash $ 6,380 $ 1,239 $ 6,576 Accounts receivable-net 85,084 72,190 64,317 Finance contracts receivable-net 10,766 8,210 6,918 Inventories 26,953 30,340 17,579 Deferred tax assets 4,217 4,217 4,385 Prepaid expenses and other assets 1,422 1,645 1,391 ---------- ---------- ---------- Total Current Assets 134,822 117,841 101,166 ---------- ---------- ---------- Property, plant and equipment-net 34,552 35,082 23,521 Finance contracts receivable-net, non-current 3,924 3,031 4,101 Intangible assets 14,484 14,816 - Other assets 5,482 5,453 5,424 --------- ---------- --------- TOTAL ASSETS $ 193,264 $ 176,223 $ 134,212 ========= ========== ========= LIABILITIES AND SHAREHOLDERS' EQUITY Current portion of long-term debt obligations $ 661 $ 672 $ 186 Accounts payable 27,219 22,212 18,917 Accrued liabilities 25,880 21,444 19,781 --------- --------- --------- Total Current Liabilities 53,760 44,328 38,884 --------- --------- --------- Line of credit facility 37,732 39,357 11,344 Long-term debt obligations 9,623 9,689 8,645 Other long-term liabilities 1,947 1,855 1,678 Deferred income taxes 3,421 3,421 2,369 --------- --------- --------- Total Long-Term Liabilities 52,723 54,322 24,036 --------- --------- --------- Common stock, $.10 par value, 25,000,000 shares authorized, 6,401,824, 6,212,686 and 6,196,898 shares outstanding, respectively 640 621 620 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 27,634 26,319 26,197 Retained earnings 58,507 50,633 44,475 --------- --------- --------- Total Shareholders' Equity 86,781 77,573 71,292 --------- --------- --------- TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 193,264 $ 176,223 $ 134,212 ========= ========= =========
The accompanying notes are an integral part of the financial statements. GEHL COMPANY AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands; unaudited)
Six Months Ended June 27, June 28, 1998 1997 CASH FLOWS FROM OPERATING ACTIVITIES: Net Income $ 7,874 $ 6,414 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 2,469 1,418 Increase in finance contracts receivable (25,031) (19,033) Proceeds from sales of finance contracts 20,994 15,913 Cost of sales of finance contracts 588 482 Net changes in remaining working capital items 159 (810) ------------ ---------- Net cash provided by operating activities 7,053 4,384 ------------ ---------- CASH FLOWS FROM INVESTING ACTIVITIES: Property, plant and equipment additions, net (1,598) (3,182) Other assets (38) 233 ------------ ---------- Net cash (used for) investing activities (1,636) (2,949) ------------ ---------- CASH FLOWS FROM FINANCING ACTIVITIES: Decrease in long-term debt obligations (77) (87) Increase in long-term liabilities 92 84 (Repayments of) proceeds from credit facility (1,625) 890 Proceeds from issuance of common stock 1,334 239 Purchase of warrant - (193) ------------ ---------- Net cash (used for) provided by financing activities (276) 933 ------------ ---------- Net increase in cash 5,141 2,368 Cash, beginning of period 1,239 4,208 ------------ ---------- Cash, end of period $ 6,380 $ 6,576 ============ ========== Supplemental disclosure of cash flow information: Cash paid for the following: Interest $ 2,329 $ 898 Income taxes $ 2,449 $ 2,251
The accompanying notes are an integral part of the financial statements. GEHL COMPANY AND SUBSIDIARIES NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS June 27, 1998 (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 27, 1998 and June 28, 1997 includes all adjustments, consisting only of normal recurring accruals, necessary for a fair presentation of the results of operations and financial position of the Company. The results of operations for the six months ended June 27, 1998 are not necessarily indicative of the results to be expected for the entire year, due in part, to the seasonal nature of the Company's business. 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, 1997 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 27, December 31, June 28, 1998 1997 1997 --------- ------------ --------- Raw materials and supplies $13,217 $14,830 $9,601 Work-in-process 5,522 5,182 4,697 Finished machines and parts 27,464 29,578 22,076 --------- ------------ --------- Total current cost value 46,203 49,590 36,374 Adjustments to LIFO basis (19,250) (19,250) (18,795) --------- ------------ --------- $26,953 $30,340 $17,579 ========= ============ ========= NOTE 4 - ACCOUNTING PRONOUNCEMENTS The Financial Accounting Standards Board (FASB) has issued Statement of Financial Accounting Standards ("SFAS") No. 133 "Accounting for Derivative Instruments and Hedging Activities" which is effective for fiscal quarters of fiscal years beginning after June 15, 1999. Due to the Company's current limited use of derivative instruments, the adoption of this statement is not expected to effect the Company's financial condition or results of operations. SFAS No. 132, "Employers' Disclosures about Pensions and Other Postretirement Benefits: an amendment of FASB Statements No. 87, 88 and 106" was adopted January 1, 1998. This statement revises disclosure requirements for pension and other postretirement benefit plans. The revised rules are intended to improve the understandability of benefit disclosures, to eliminate certain requirements that the FASB believes are no longer necessary, and to standardize footnote disclosures. None of the SFAS No. 132 changes affect the measurement or the recognition of benefit costs. The appropriate footnote disclosures will be incorporated into the Company's Form 10-K filing for the year ending December 31, 1998. Effective January 1, 1998, the Company adopted SFAS No. 130 "Reporting Comprehensive Income", the effect of which was immaterial to the financial statements. SFAS No. 131, "Disclosures about Segments of an Enterprise and Related Information", was adopted effective January 1, 1998. This statement establishes standards for the way that business enterprises report information, financial and descriptive, about operating segments in annual financial statements and requires that those enterprises report selected information about operating segments in interim financial reports issued to shareholders. It also establishes standards for related disclosures about products and services, geographic areas and major customers. The appropriate footnote disclosures will be incorporated into the Company's Form 10-K filing for the year ending December 31, 1998 as required. NOTE 5 - EARNINGS PER SHARE 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 and warrants. A reconciliation of the shares used in the computation of earnings per share follows (in thousands): For the second quarter ended: June 27, 1998 June 28, 1997 ------------- ------------- Basic shares 6,399 6,191 Effect of warrants and options 290 288 ----- ----- Diluted shares 6,689 6,479 ===== ===== For the six months ended: June 27, 1998 June 28, 1997 ------------- ------------- Basic shares 6,336 6,188 Effect of warrants and options 342 254 ----- ----- Diluted shares 6,678 6,442 ===== ===== Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Results of Operations Three Months Ended June 27, 1998 Compared to Three Months Ended June 28, 1997 Net sales for the second quarter of 1998 were $75.2 million, 46% higher than the $51.6 million in the comparable period of 1997. The increase was primarily due to the shipment of Mustang skid loaders in 1998, which product line was acquired in the fourth quarter of 1997, as well as increased demand for existing products and sales of newly introduced products. Construction equipment's net sales increased 79% to $45.4 million in the second quarter of 1998 from $25.4 million in the second quarter of 1997. The construction equipment increase resulted from continued strong demand for the Company's rough-terrain telescopic handlers and the aforementioned Mustang skid loader product shipments. Agriculture equipment's net sales increased 14% to $29.8 million in the second quarter of 1998 from $26.2 million in the second quarter of 1997. The increase was due primarily to the introduction of new product offerings, including a forage harvester with a crop processing attachment and a wider model disc mower conditioner. Of the Company's total net sales reported for the second quarter of 1998, $12.3 million represented sales made outside of the United States compared with $8.3 million in the comparable period of 1997. The increase is due primarily to the addition of Mustang product sales. Gross profit increased $5.6 million, or 36%, during the second quarter of 1998 versus the comparable period of 1997 due primarily to increased sales volume. Gross profit as a percent of net sales decreased to 28.1% for the second quarter of 1998 from 30.1% in the comparable period of 1997. Gross profit as a percent of net sales for construction equipment decreased to 26.3% in the second quarter of 1998 from 32.2% for the second quarter of 1997. This decrease was due primarily to: 1) shipments of Mustang skid loaders which have lower gross margins than other Company sales of construction equipment; and 2) competitive pressures restricting price increases to lower levels than the cost increases incurred by the Company. Gross profit as a percent of net sales for agricultural equipment increased to 31.0% in the second quarter of 1998 from 28.2% for the second quarter of 1997. The primary reason for the increase was the impact of a change in the mix of products shipped in the second quarter of 1998 versus products shipped in comparable 1997. Selling, general and administrative expenses increased $2.7 million, or 30%, during the second quarter of 1998 versus the comparable period of 1997, due primarily to operating costs related to Mustang skid loader operations. As a percent of net sales, selling, general and administrative expenses decreased to 15.5% of net sales during the second quarter of 1998 versus 17.3% in the comparable period of 1997. Second quarter 1998 income from operations of $9.5 million was 44% higher than the $6.6 million in the second quarter of 1997. Interest expense increased $792,000 to $1,251,000 in the second quarter of 1998 from $459,000 in the second quarter of 1997. The increase was a result of an increase in average debt outstanding to $59.0 million in the second quarter of 1998 versus $23.8 million in the second quarter of 1997, offset by the average rate of interest paid by the Company decreasing to approximately 7.8% in the second quarter of 1998 from 8.0% in the comparable period of 1997. The increase in the average debt outstanding was primarily the result of the indebtedness related to the Mustang acquisition. Six Months Ended June 27, 1998 Compared to Six Months Ended June 28, 1997 Net sales for the first six months of 1998 were $136.5 million, 43% higher than the $95.3 million in the comparable period of 1997. The increase was primarily due to the shipment of Mustang skid loaders as well as increased demand for existing products and sales of newly introduced products. Construction equipment's net sales increased 72% to $79.5 million in the first six months of 1998 from $46.2 million in the first six months of 1997. The construction equipment increase resulted from continued strong demand for the Company's rough-terrain telescopic handler and the aforementioned Mustang skid loader shipments. Agriculture equipment's net sales increased 16% to $57.0 million in the first six months of 1998 from $49.1 in the first six months of 1997. The increase was due primarily to skid loader shipments and the introduction of new product offerings, including a forage harvester with a crop processing attachment and a wider model disc mower conditioner. Of the Company's total net sales reported for the first six months of 1998, $22.0 million represented sales made outside of the United States compared with $16.4 million in the comparable period of 1997. The increase is due primarily to the addition of Mustang product sales. As the Company has increased its sales of construction equipment products, the Company has been successful in reducing the seasonality of its sales. However, some sales seasonality still remains, primarily in April through June, the Company's second fiscal quarter which historically has tended to be the Company's strongest quarter for sales, while the Company has historically experienced lower sales levels in its first and fourth fiscal quarters in January through March and October through December, respectively. Gross profit increased $8.5 million, or 30%, during the first six months of 1998 versus the comparable period of 1997, primarily due to increased sales volume. Gross profit as a percent of net sales decreased to 27.1% for the first six months of 1998 from 29.9% in the comparable period of 1997. Gross profit as a percent of net sales for construction equipment decreased to 25.5% in the first six months of 1998 from 31.5% in the first six months of 1997. This decrease was due primarily to: 1) shipments of Mustang skid loaders which have lower gross margins than other Company sales of construction equipment; and 2) competitive pressures restricting price increases to lower levels than the cost increases incurred by the Company. Gross profit as a percent of net sales for agricultural equipment increased to 29.4% for the first six months of 1998 from 28.5% for the first six months of 1997. The primary reasons for the increase were: 1) export sales, typically made at a lower gross margin than domestic sales, constituting a smaller portion of the shipments in 1998 versus 1997; and 2) the impact of a change in the mix of products shipped in 1998 versus products shipped in comparable 1997. Selling, general and administrative expenses increased $4.8 million, or 27%, during the first six months of 1998 versus the comparable period of 1997 due primarily to operating costs related to Mustang skid loader operations. As a percent of net sales, selling, general and administrative expenses decreased to 16.5% during the first six months of 1998 versus 18.7% in the comparable period of 1997. Income from operations in the first six months of 1998 of $14.5 million was 35% higher than the $10.7 million for the comparable period of 1997. Interest expense increased $1.5 million to $2.4 million in the first six months of 1998 from $927,000 in the first six months of 1997. The increase was a result of an increase in average debt outstanding to $57.5 million in the first six months of 1998 versus $23.0 million in the comparable period of 1997, offset by a decrease in the average rate of interest paid by the Company to approximately 7.9% in the first six months of 1998 from 8.0% in the comparable period of 1997. The increase in the average debt outstanding was primarily the result of the indebtedness related to the Mustang acquisition. Financial Condition The Company's working capital was $81.1 million at June 27, 1998, as compared to $73.5 million at December 31, 1997, and $62.3 million at June 28, 1997. The increase since December 31, 1997 resulted primarily from seasonal increases in accounts receivable. The increase since June 28, 1997 was due primarily to the working capital associated with the acquired Mustang operations. The Company's cash flow provided by operating activities in the first six months of 1998 was $7.1 million versus $4.4 million in comparable 1997. The second quarter 1998 cash flow provided by operations was $15.3 million compared to 1997's second quarter of $7.5 million provided by operations. This increase was due primarily to a reduction in inventory and accounts receivable in the second quarter of 1998. Capital expenditures for property, plant and equipment during the first six months of 1998 were approximately $1.6 million. The Company plans to make approximately $5.0 million of capital expenditures in 1998. Outstanding commitments as of June 27, 1998 totaled approximately $300,000. As of June 27, 1998, the weighted average interest rate paid by the Company on outstanding borrowings under its line of credit facility was 7.6%. The Company had available unused borrowing capacity of $35.8 million, $28.3 million, and $53.0 million under the line of credit facility at June 27, 1998, December 31, 1997, and June 28, 1997, respectively. At June 27, 1998, December 31, 1997, and June 28, 1997, the borrowings outstanding under the line of credit facility were $37.7 million, $39.4 million and $11.3 million, respectively. The sale of finance contracts is an important component of the Company's overall liquidity. Gehl has arrangements with several financial institutions and financial service companies to sell, with recourse, its finance contracts receivable. The Company continues to service substantially all contracts whether or not sold. At June 27, 1998, Gehl serviced $73.3 million of such contracts, of which $58.6 million were owned by other parties. The Company believes that it has sufficient capacity to sell its retail finance contracts for the foreseeable future. Shareholders' equity at June 27, 1998 was $86.8 million. This amount was $15.5 million higher than the $71.3 million of shareholders' equity at June 28, 1997, due primarily to income earned from June 29, 1997 through June 27, 1998. The Financial Accounting Standards Board (FASB) has issued Statement of Financial Accounting Standards ("SFAS") No. 133 "Accounting for Derivative Instruments and Hedging Activities" which is effective for fiscal quarters of fiscal years beginning after June 15, 1999. Due to the Company's current limited use of derivative instruments, the adoption of this statement is not expected to effect the Company's financial condition or results of operations. SFAS No. 132, "Employers' Disclosures about Pensions and Other Postretirement Benefits: an amendment of FASB Statements No. 87, 88 and 106" was adopted January 1, 1998. This statement revises disclosure requirements for pension and other postretirement benefit plans. The revised rules are intended to improve the understandability of benefit disclosures, to eliminate certain requirements that the FASB believes are no longer necessary, and to standardize footnote disclosures. None of the SFAS No. 132 changes affect the measurement or the recognition of benefit costs. The appropriate footnote disclosures will be incorporated into the Company's Form 10-K filing for the year ending December 31, 1998. Effective January 1, 1998, the Company adopted SFAS No. 130 "Reporting Comprehensive Income", the effect of which was immaterial to the financial statements. SFAS No. 131, "Disclosures about Segments of an Enterprise and Related Information", was adopted effective January 1, 1998. This statement establishes standards for the way that business enterprises report information, financial and descriptive, about operating segments in annual financial statements and requires that those enterprises report selected information about operating segments in interim financial reports issued to shareholders. It also establishes standards for related disclosures about products and services, geographic areas and major customers. The appropriate footnote disclosures will be incorporated into the Company's Form 10-K filing for the year ending December 31, 1998 as required. Certain matters discussed in this Quarterly Report on Form 10-Q are "forward-looking statements" intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. These forward-looking statements can generally be identified as such because the context of the statement will include such words as the Company "believes," "anticipates" or "expects," or words of similar import. Similarly, statements that describe the Company's future plans, objectives or goals are also forward-looking statements. The forward-looking statements are subject to certain risks and uncertainties which could cause actual results to differ materially from those currently anticipated. Such risks and uncertainties include competitive conditions in the markets served by the Company, changes in the Company's plans regarding capital expenditures, general economic conditions, unanticipated events related to resolving the Year 2000 issue, interest and foreign currency fluctuations, and the ability of the Company to successfully integrate the Mustang operations. Shareholders, potential investors and other readers are urged to consider these factors carefully in evaluating the forward-looking statements and are cautioned not to place undue reliance on such forward-looking statements. Item 3. Quantitative and Qualitative Disclosures About Market Risk Not Applicable PART II - OTHER INFORMATION Item 4. Submission of Matters to a Vote of Security Holders. At the Company's annual meeting of shareholders held on April 29, 1998, Fred M. Butler, William D. Gehl and John W. Splude were elected as directors of the Company for terms expiring in 2001. The following table sets forth certain information with respect to the election of directors at the annual meeting: Shares Withholding Name of Nominee Shares Voted For Authority Fred M. Butler 4,884,751 793,606 William D. Gehl 4,885,588 792,769 John W. Splude 4,884,751 793,606 The following table sets forth the other directors of the Company whose terms of office continued after the 1998 annual meeting: Year in Which Name of Director Term Expires Thomas J. Boldt 1999 William P. Killian 1999 Roger E. Secrist 1999 John W. Gehl 2000 Arthur W. Nesbitt 2000 Item 5. Other Information Proposals of shareholders pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended, ("Rule 14a-8"), that are intended to be presented at the 1999 annual meeting must be received by the Company no later than November 13, 1998 to be included in the Company's proxy materials for that meeting. Further, a shareholder who otherwise intends to present business at the 1999 annual meeting must comply with the requirements set forth in the Company's By-Laws. Among other things, to bring business before an annual meeting, a shareholder must give written notice thereof, complying with the By-Laws, to the Secretary of the Company not less than 60 days and not more than 90 days prior to the last Thursday in the month of April. Under the By-Laws for purposes of the 1999 annual meeting of shareholders, if the Company does not receive notice of a shareholder proposal submitted otherwise than pursuant to Rule 14a-8 on or prior to February 28, 1999, then the notice will be considered untimely and the Company will not be required to present such proposal at the 1999 annual meeting. If the Board of Directors nonetheless chooses to present such proposal at the 1999 annual meeting, then the persons named in proxies solicited by the Board of Directors for the 1999 annual meeting may exercise discretionary voting power with respect to such proposal. Item 6. Exhibits and Reports on Form 8-K. (a) Exhibits 3.2 Amendment to Gehl Company By-Laws, dated April 29, 1998. 3.3 By-Laws of Gehl Company, as amended. 4.1 Sixth Amendment to Amended and Restated Loan and Security Agreement by and between Deutsche Financial Services Corporation, f/k/a ITT Commercial Finance Corp., Deutsche Financial Services, a division of Deutsche Bank Canada and Gehl Company and its Subsidiaries, dated as of June 1, 1998. 4.2 Loan Agreement by and between South Dakota Board of Economic Development and Gehl Company, dated May 26, 1998. 4.3 Promissory Note signed by Gehl Company payable to South Dakota Board of Economic Development, dated May 26, 1998. 4.4 Mortgage by and between Gehl Company and South Dakota Board of Economic Development, dated May 26, 1998. 4.5 Employment Agreement by and between Gehl Company and South Dakota Board of Economic Development, dated May 26, 1998. 27 Financial Data Schedule [included in the EDGAR filing only] (b) Reports on Form 8-K No reports on Form 8-K were filed by the Company during the quarter ended June 27, 1998. 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 10, 1998 By: /s/ William D. Gehl William D. Gehl Chairman of the Board, President and Chief Executive Officer Date: August 10, 1998 By: /s/ Kenneth P. Hahn Kenneth P. Hahn Vice President of Finance and Treasurer (Principal Financial and Accounting Officer) GEHL COMPANY FORM 10-Q June 27, 1998 EXHIBIT INDEX Exhibit No. Document Description 3.2 Amendment to Gehl Company By-Laws, dated April 29, 1998. 3.3 By-Laws of Gehl Company, as amended. 4.1 Sixth Amendment to Amended and Restated Loan and Security Agreement by and between Deutsche Financial Services Corporation, f/k/a ITT Commercial Finance Corp., Deutsche Financial Services, a division of Deutsche Bank Canada and Gehl Company and its Subsidiaries, dated as of June 1, 1998. 4.2 Loan Agreement by and between South Dakota Board of Economic Development and Gehl Company, dated May 26, 1998. 4.3 Promissory Note signed by Gehl Company payable to South Dakota Board of Economic Development, dated May 26, 1998. 4.4 Mortgage by and between Gehl Company and South Dakota Board of Economic Development, dated May 26, 1998. 4.5 Employment Agreement by and between Gehl Company and South Dakota Board of Economic Development, dated May 26, 1998. 27 Financial Data Schedule [included in the EDGAR filing only] EX-3.2 2 Sixth Amendment of the Restated 2/22/91 By-Laws of GEHL COMPANY (A Wisconsin Corporation) Effective immediately, Section 3.01 shall be revised to read as follows: "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 eight (8) divided into three (3) classes: Class I - three (3) directors; Class II - two (2) directors; Class III - three (3) directors." Approved at 4/29/98 Board Meeting EX-3.3 3 (Restated/approved 2/22/91) (First Amendment 12/18/92) (Second Amendment 2/17/93) (Third Amendment 2/25/94) (Fourth Amendment 2/24/95) (Fifth Amendment 2/23/96) (Sixth Amendment 4/29/98) 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 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"). (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 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 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. 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 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. (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. (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 60 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 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. (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. 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. 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. 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. If action is to be taken at any meeting held by such means on any of the following: (a) a plan of merger or share exchange; (b) a sale, lease, exchange or other disposition of substantial property or assets of the corporation; (c) a voluntary dissolution or the revocation of voluntary dissolution proceedings; or (d) a filing for bankruptcy, then the identity of each director participating in such meeting must be verified by the disclosure at such meeting by each such director of each such director's social security number to the secretary of the meeting before a vote may be taken on any of the foregoing matters. For purposes of the preceding clause (b), the phrase "sale, lease, exchange or other disposition of substantial property or assets" shall mean any sale, lease, exchange or other disposition of property or assets of the corporation having a net book value equal to 10% or more of the net book value of the total assets of the corporation on and as of the close of the fiscal year last ended prior to the date of such meeting and as to which financial statements of the corporation have been prepared. 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 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 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. 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. 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. 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 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. (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. 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 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 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 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)). 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. First Amendment of the Restated 2/22/91 By-Laws of GEHL COMPANY (A Wisconsin Corporation) Section 3.01 shall be revised to read as follows: "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 seven (7), divided into three (3) classes: Class I - two (2) directors; Class II - three (3) directors; Class III - two (2) directors. Approved at 12/18/92 Board Meeting Second Amendment of the Restated 2/22/91 By-Laws of GEHL COMPANY (A Wisconsin Corporation) Section 3.01 shall be revised to read as follows: "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 eight (8), divided into three (3) classes: Class I - two (2) directors; Class II - four (4) directors; Class III - two (2) directors. Approved at 12/17/93 Board Meeting Third Amendment of the Restated 2/22/91 By-Laws of GEHL COMPANY (A Wisconsin Corporation) Effective immediately prior to the commencement of the Annual Meeting, Section 3.01 shall be revised to read as follows: "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 seven (7), divided into three (3) classes: Class I - two (2) directors; Class II - three (3) directors; Class III - two (2) directors." Approved at 2/25/94 Board Meeting Fourth Amendment of the Restated 2/22/91 By-Laws of GEHL COMPANY (A Wisconsin Corporation) Effective immediately, Section 3.01 shall be revised to read as follows: "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 eight (8), divided into three (3) classes: Class I - three (3) directors; Class II - three (3) directors; Class III - two (2) directors." Approved at 2/24/95 Board Meeting Fifth Amendment of the Restated 2/22/91 By-Laws of GEHL COMPANY (A Wisconsin Corporation) Effective immediately, Section 3.01 shall be revised to read as follows: "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." Approved at 2/23/96 Board Meeting Sixth Amendment of the Restated 2/22/91 By-Laws of Gehl Company (A Wisconsin Corporation) Effective immediately, Section 3.01 shall be revised to read as follows: "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 eight (8) divided into three (3) classes: Class I - three (3) directors; Class II - two (2) directors; Class III - three (3) directors." Approved at 4/29/98 Board Meeting (Restated/Approved 2/22/91) (First Amendment 12/18/92) (Second Amendment 2/17/93) (Third Amendment 2/25/94) (Fourth Amendment 2/24/95) (Fifth Amendment 2/23/96) (Sixth Amendment 4/29/98) EX-4.1 4 SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This Sixth Amendment is made to that certain Amended and Restated Loan and Security Agreement executed as of October 1, 1994 by and between Deutsche Financial Services Corporation, f/k/a ITT Commercial Finance Corp. ("ITT"), ("DFS"), Deutsche Financial Services, a division of Deutsche Bank Canada, successor-in-interest to ITT Commercial Finance, a division of ITT Industries of Canada Ltd., ("DFSC") (DFS and DFSC are hereinafter collectively referred to as "DFS"), and Gehl Company ("Gehl") and its subsidiaries, including, but not limited to, Hedlund Martin Inc., Gehl Power Products, Inc., Mustang Manufacturing Company, Inc. and Mustang Finance, Inc. (collectively "Gehl Company") as amended ("Agreement"). FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is acknowledged, DFS and Gehl Company agree to amend the Agreement as follows: 1. Subpart (a) of Section 3.2 of the Agreement, Available Credit, is deleted in its entirety and restated as follows: "(a) Eighty percent (80%) of the net amount of the Eligible Accounts listed in such Schedule, excluding Net Accounts, 2. All other terms and provisions of the Agreement remain unchanged and in full force and effect. IN WITNESS WHEREOF the dully authorized representatives of DFS, DFSC, and Gehl Company have executed this Sixth Amendment to Amended and Restated Loan and Security Agreement as of this 1st day of June, 1998. GEHL COMPANY HEDLUND MARTIN, INC. By: /s/ W.D. Gehl By: /s/ W.D. Gehl Title: President Title: President By: /s/ Kenneth P. Hahn By: /s/ Kenneth P. Hahn Title: Vice President Title: Treasurer GEHL POWER PRODUCTS, INC. MUSTANG MANUFACTURING COMPANY, INC. By: /s/ W.D. Gehl By: /s/ W.D. Gehl Title: President Title: Chairman of the Board By: /s/ Kenneth P. Hahn By: /s/ Kenneth P. Hahn Title: Treasurer Title: Vice President MUSTANG FINANCE, INC. By: /s/ W.D. Gehl Title: Chairman of the Board By: /s/ Kenneth P. Hahn Title: Vice President DEUTSCHE FINANCIAL SERVICES DEUTSCHE FINANCIAL SERVICES, CORPORATION a division of Deutsche Bank Canada By: /s/ Thomas L. Meredith By: /s/ Bill Blight Title: Vice President Title: Vice President By: /s/ Joe Conte Title: Vice President EX-4.2 5 REDI Loan Number 97-04-A STATE OF SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT REVOLVING ECONOMIC DEVELOPMENT AND INITIATIVE FUND (REDI) LOAN AGREEMENT LOAN AGREEMENT made and entered into this 26th day of May, 1998, by and between the South Dakota Board of Economic Development, 711 Wells Avenue, Pierre, South Dakota 57501 (herein "BED"), and Gehl Company, of 143 Water Street, West Bend, WI 53095 for a project at 915 S.W. 7th Street, Madison, South Dakota 57042, (herein the "Borrower"). WHEREAS, the South Dakota Board of Economic Development is a board created pursuant to SDCL 1-16G-1 for the purpose of promoting economic development in South Dakota, and the South Dakota Governor's Office of Economic Development, acting pursuant to ARSD 68:02:01:23, provides administrative support to BED in the application, processing, monitoring, and servicing of loans made by BED; and, WHEREAS, the Borrower made an application (the "Application") dated January 20, 1997, to BED for a loan from the Revolving Economic Development and Initiative Fund (REDI), which Application was approved by BED pursuant to SDCL Chapters 1-33 and 1-16G, as amended, and ARSD Article 68:02 (the "BED Loan"); and, WHEREAS, BED has by duly adopted resolution designated one of the members of the Board of Economic Development to execute this Loan Agreement; has designated the Commissioner, Governor's Office of Economic Development, (the "Commissioner"), and BankWest, Inc., a state chartered financial institution, of Pierre, South Dakota (BankWest), as its representatives hereunder; has authorized the Commissioner to act on its and the State's behalf hereunder; has empowered the Commissioner to delegate his duties in connection herewith to those persons under his supervision as he deems appropriate; has entered into a Loan Servicing Agreement with BankWest, whereby BankWest will act as BED's agent for purposes of closing, funding, receiving payment and servicing the BED Loan with the Borrower: and has authorized BankWest to act on behalf of BED consistent with the terms of the Loan Servicing Agreement and the Borrower's BED Loan Documents; NOW THEREFORE it is mutually agreed as follows: 1. In consideration of the Borrower's execution and delivery of a Promissory Note dated the date hereof, and observance and performance of the covenants, terms and conditions hereof, and in reliance on the Borrower's representations made herein, BED, through its duly designated agent, agrees to loan to Borrower, from the Revolving Economic Development and Initiative Fund the principal sum of Two Hundred Fifty-five Thousand Dollars ($255,000.00), according to the terms and conditions set forth in this Loan Agreement and the Promissory Note of even date herewith, a true copy of which is attached hereto as Exhibit A and by this reference incorporated herein. 2. In consideration of BED's agreement to loan said funds to the Borrower, the Borrower has made, executed and delivered to BED a Promissory Note dated the date hereof, in the principal sum of Two Hundred Fifty-five Thousand dollars ($255,000.00), due and payable, together with interest thereon at the rate of Three percent (3.0%) per annum, simple interest, according to the terms and conditions set forth therein and in this Loan Agreement. 3. As security for the repayment of the BED Loan above described, the Borrower agrees as follows: a. To mortgage to BED the real property, buildings, and improvements owned by the Borrower as described with particularity in the Mortgage dated May 26, 1998, a true copy of which is attached hereto as Exhibit B and by this reference incorporated herein; b. To execute an Employment Agreement with BED agreeing to create and retain not less than 51 full time employee positions, as set forth in the Borrower's Application dated January 20, 1997. 4. Unless otherwise provided herein or in the Loan Servicing Agreement, or unless a Lender disburses the funds pursuant to a Lender Agreement, the loan proceeds will be kept in the state treasury, in the Revolving Economic Development and Initiative Fund, and shall be disbursed to the Borrower based upon the Borrower's request for disbursements. In order to obtain a disbursement, the Borrower shall submit to BED a signed request for disbursement on a form prescribed by BED, together with all attachments required by such form. Disbursements may be obtained only for those Project costs which have been legally incurred, and which are due and payable, or have been paid by the Borrower. The Borrower will designate, by duly adopted resolution, an official to certify on Borrower's behalf that the request submitted is correct and is a valid expenditure for the Project. Unless BED specifically agrees otherwise, or unless the Borrower has already paid the costs, disbursements shall be made directly to the person to whom the Borrower owes such amount. First disbursement of the BED Loan must be made not later than six months from the date hereof, and no disbursement may be made later than twelve months from the date of BED's original approval of Borrower's Application, unless such time is extended in writing by BED. 5. Borrower warrants and represents as follows: a. The Borrower is duly organized and existing under the laws of the State of Wisconsin, or under the laws of another state or country and is authorized to transact business in the State of South Dakota; has taken all proper action, including the adoption of a resolution, to authorize the execution, delivery and performance of its obligations under this Loan Agreement, the Promissory Note, and any other Loan Documents (hereinafter referred to jointly as the "Loan Documents"), and the incurring of the debt represented by the Promissory Note; and has the power and authority to enter into and consummate all transactions contemplated by the Loan Documents, and to carry out its obligations hereunder and thereunder. b. There is no action, suit, proceeding, inquiry or investigation at law or equity, by or before any judicial or administrative court, agency or body, pending or threatened against the Borrower wherein an unfavorable decision, ruling, or finding would materially and adversely affect the validity or enforceability of any of the Loan Documents. c. Neither the execution and delivery of the Loan Documents, the consummation of the transactions contemplated thereby, nor the fulfillment of, or compliance with the provisions of the Loan Documents will conflict with or result in the breach of any restriction, agreement or instrument to which the Borrower is a party, or by which it is bound, or result in the creation or imposition of any lien of any nature upon any of the property of the Borrower under the terms of any such instrument or agreement, nor will such action result in the violation of any provision of any law, ordinance, governmental order to which the Borrower, its property or operations are subject. d. No event of default has occurred in any agreement or instrument as to any outstanding indebtedness of the Borrower for money borrowed and no condition, event or act exists which, with the lapse of time or the giving of notice, would constitute an event of default under any such agreement or instrument. The Borrower is not in violation of any term of any restriction, agreement, indenture, ordinance, resolution, charter, or other instrument to which it is a party or which it or its property may be bound, which violation would materially and adversely affect the transactions contemplated hereby or the compliance by the Borrower with the terms of the Loan Documents. e. The Borrower has obtained or made all permits, findings and approvals required to the date of this Loan Agreement by any governmental body or officer for the making and performance by the Borrower of its obligations under the Loan Documents or for the Project, the financing thereof or the reimbursement of the Borrower for the costs thereof. No consent, approval or authorization of, or filing, registration or qualification with, any governmental authority (other than those, if any, already obtained) is required on the part of the Borrower as a condition to entering into the Loan Documents and the performance of the Borrower's obligations hereunder and thereunder. f. The Loan Documents to which the Borrower is a party are legal, valid and binding obligations and agreements of the Borrower, enforceable against the Borrower according to their terms, except as the enforceability thereof may be limited by laws relating to bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity. g. The Project consists of the facilities, improvements and activities described in Exhibit E, attached hereto, and by this reference incorporated herein, as such Exhibit may be amended from time to time. h. The funds provided pursuant to this Loan Agreement do not exceed eleven percent (11%) of the total Project cost as described in the Borrower's Application. i. There is no fact that the Borrower has not specifically disclosed in writing to BED that materially and adversely affects or will materially and adversely affect the properties, operations and finances of the Borrower, its status as a legal entity in good standing, or its ability to perform its obligations under the Loan Documents, or to pledge any revenues or property to the repayment of the BED Loan. j. The Borrower certifies that there has been no material adverse change since the date of the Borrower's Application in the financial condition, organization, operation, business prospects, property, or the personnel of the Borrower; and that the information contained in the Application, and other information the Borrower provided to BED does not contain any material misrepresentations or misstatements of fact. k. The Borrower further certifies that it: (1) has not received any notice or otherwise learned of any Environmental Liability which would individually or in the aggregate constitute a Material Adverse Occurrence arising in connection with (i) any non-compliance with or violation of the requirements of any Environmental Law or (ii) the release or threatened release of any toxic or hazardous waste or other substance into the environment; (2) does not have any knowledge of any threatened or actual liability in connection with the release or threatened release of any toxic or hazardous waste, substance or constituent, or other substance in the environment which would individually or in the aggregate constitute a Material Adverse Occurrence; or (3) has not received any notice or otherwise learned of any federal or state investigation evaluating whether any remedial action is needed to respond to a material release or threatened release on any toxic or hazardous waste, substance or constituent into the environment for which the Borrower is or may be liable. The Borrower is in substantial compliance with all Environmental Laws in the respective jurisdictions where it is presently doing business or conducting operations. (4)Material Adverse Occurrence shall mean any occurrence of whatsoever nature (including, without limitation, any adverse determination in any litigation, arbitration or governmental investigation or proceeding) which the BED shall reasonably determine materially adversely affects the then present or prospective financial condition or operations of any party to the BED Loan, or impairs the ability of any such Party to perform its obligations under any of the Loan Documents. 6. To further induce BED to make this BED Loan, Borrower agrees to the following conditions: a. Borrower will execute the Loan Documents and any supplements or additions thereto, and such other documents in connection with this BED Loan as BED may from time to time request. b. Borrower will, on demand, reimburse BED for any and all expenses, including reasonable attorney fees, incurred, or which may be hereafter incurred, by BED or its agents from time to time in connection with or by reason of Borrower's Application for, and the making and administration of the BED Loan. c. Borrower will at all times keep proper books of account in a manner satisfactory to BED. Borrower authorizes BED to make or cause to be made, during regular business hours, at Borrower's expense and in such manner and at such times as BED may require, (i) inspections and audits of any books, records and papers in the custody or control of Borrower or others, relating to Borrower's financial or business conditions, including the making of copies thereof and extracts therefrom. Borrower will furnish to BED the 10-Q statements within 60 days of quarter end and the 10K statements within 120 days of year end. All financials must consist, at a minimum of a balance sheet and income statement. Borrower hereby authorizes all federal, state and municipal authorities to furnish reports, examination, records, and other information relating to the conditions and affairs of Borrower and any desired information from such reports, returns, files, and records of such authorities upon request therefor by BED. d. Borrower agrees to comply with those federal, state and local laws, regulations, ordinances and permits applicable to the Project, as well as the provisions of SDCL Chapter 1-16G, SDCL Chapter 1-33, and ARSD Chapter 68:02, and shall furnish to BED such reports and information and provide such access required by those statutes and rules. e. Borrower agrees to pay in a timely manner the principal and interest on the Promissory Note, and on any other indebtedness now or hereafter at any time due to BED or any other Lender. f. The Borrower will promptly pay all taxes, charges, liens, assessments and encumbrances which now affect, or which may in the future affect, the Project or the security for the payment of the Promissory Note as herein provided, or BED's interest therein for which it is legally liable. g. Borrower agrees to indemnify and hold BED, its officers, agents and employees, harmless from and against any and all actions, suits, damages, liability or other proceedings arising from or connected with the Borrower's Project funded herein. This section does not require the Borrower to be responsible for or defend against claims or damages arising solely from errors or omissions of BED, its officers, agents or employees. 7. On or prior to the disbursement of funds pursuant to this Loan Agreement, the Borrower shall submit to BED all documents required by the Commitment Letter, the Loan Documents and the applicable statutes and regulations. In addition, the Borrower shall submit the following items: a. the executed Promissory Note; b. an executed counterpart of this Loan Agreement; c. a certified resolution of the Borrower's governing body approving the BED Loan, this Loan Agreement, the Promissory Note, and the Loan Documents; d. any certificate of insurance required by the Loan Agreement or the Loan Documents, including , if applicable, a title insurance policy; Once the documents listed above have been executed and delivered, the BED Loan will be deemed closed. 8. In the event the Borrower fails to make any payment or any part thereof as provided in the Promissory Note described herein, within fifteen days of the due date thereof, or in the event that the Borrower fails or refuses to perform any covenants or agreements hereunder on Borrower's part made and entered into, or under any agreement between the Borrower and BED made in connection with the BED Loan, or in the event of the failure of the Borrower to promptly pay, when due, any taxes, charges, liens, assessments, or encumbrances, or in the event of the insolvency of the Borrower, BED may at its option declare this Agreement to be in default and shall provide Borrower with written notice of such default. If such default has not been cured within fifteen (15)days of Borrower's receipt of written notice thereof, BED at its sole option, may accelerate the payment of the outstanding debt and may declare the entire unpaid principal sum including interest due thereon immediately due and payable, and if not paid within 10 days thereof this Agreement may be foreclosed in the manner provided by law. (a) Past due payments of principal and interest bear interest at a rate per annum three (3) percentage points higher than the prime rate of interest published weekly in the Wall Street Journal at the time of default until paid. (b) In the event that Borrower defaults in providing the financial information required by Section 6(c), the reports required under Section 6(d), or proof of the insurance required by Section 12 of this Loan Agreement, then the Borrower shall pay to BED the sum of $200 for each such default. This sum is intended by the parties and shall be considered and treated as liquidated damages due to BED, and not as a penalty. The parties specifically agree that due to the nature of the BED Loan made to the Borrower it is impracticable or extremely difficult to fix the actual damages resulting from the Borrower's breach of those provisions of this Loan Agreement because failure to provide the information in a timely manner prevents BED from having complete and accurate data concerning the status of its economic development program for the purpose of preparing its annual report, assessing the success of its economic development strategies and developing future strategies; from assessing the financial strength of the businesses BED assists, and the success of its assistance efforts; and it makes it difficult for BED to protect the continued viability of its revolving loan program. 9. At its sole option, BED, in event of default, has the right, but not the duty, to incur and pay any reasonable expenses, for the account of the Borrower, for the payment of any taxes, charges, liens, assessments and encumbrances with relation to the Project, and add any amounts so paid to the principal sum due hereunder. Borrower agrees that if an event of default occurs, in addition to any other amounts that may be due from the Borrower, it will pay BED an amount equal to the costs and expenses, including reasonable expert and attorneys fees, incurred by BED in enforcing its rights under this Loan Agreement or the other Loan Documents. 10. The rights and remedies herein conferred upon BED shall be cumulative and not alternative and shall be in addition and not in substitution of or in derogation of rights and remedies conferred by the Loan Documents or any other agreements between the parties hereto or by any applicable law. The failure of BED to enforce strict performance of any covenant, promise, or condition herein contained, including timely payments due hereunder, shall not operate as a waiver of the right of BED thereafter to require that the terms hereof be strictly performed according to the tenor thereof. 11. If BED participates in this loan with a bank, credit union, savings and loan, a federal or state agency, or other lender ("the Lender"), the Borrower agrees to cooperate and abide by all terms and conditions of any and all loan documents involving any loan from the Lender to the Borrower for the Project, including the Lender Agreement. A default in any provision of any such loan documents with the Lender shall constitute a default under this Loan Agreement and the Promissory Note. Borrower further agrees to cooperate with BankWest as closing agent and loan servicing agent, to facilitate the performance of the duties of BankWest pursuant to the Loan Servicing Agreement. 12. The Borrower shall at all times during the term of this Loan Agreement, and while the Promissory Note is outstanding, keep and maintain, or provide evidence acceptable to BED that it has obtained, property and casualty insurance, workers compensation, and liability insurance with insurers licensed to do business in the State, against such risks and in such amounts as are customary in the State for entities of the same or similar size and type as the Borrower, and similarly situated with facilities of the Project's type, and provide proof of such coverage to BED. Each policy shall be Lender Loss Payable, and name BED as an additional insured or loss payee, as its interests may appear. Any policy provided pursuant to this section must provide that it cannot be canceled without 30 days prior written notice of cancellation. In the event of cancellation the Borrower will promptly obtain replacement insurance with the same or substantially similar coverage and provide proof of such coverage to BED. In the event of renewal, replacement, or changes in coverage, the Borrower will promptly provide written notice of such changes to BED. 13. The Borrower covenants and agrees to comply with all present and future environmental laws, ordinances, permits, rules and regulations. Borrower shall not permit the generation, creation, treatment, incorporation, discharge, disposal, escape, release or threat of release of any contaminant above, upon, under, within, or from the Project site which is not in compliance with any applicable laws, ordinances, permits, rules and regulations. Borrower represents that there are no underground storage tanks containing any contaminant located on the Project site, or property assigned as Collateral for this BED Loan, and that no new tanks will be located on such property unless the Borrower complies with any applicable laws, ordinances, rules and regulations, and obtains all necessary permits. a. For purposes of this Loan Agreement, "contaminant" is a "Petroleum Product" as described in SDCL 37-2-5; "Asbestos" as described in SDCL 34-44-1(2); a "Regulated Substance" as described in SDCL 34A-12-1(8); substances regulated under and defined in the provisions of 15 U.S.C. 2601-2671, 33 U.S.C. 1251-1387, 42 U.S.C. 6901-6999(I), or 42 U.S.C. 7401-7642; or any corresponding federal or state regulations promulgated under the above federal or state statutes, as well as any amendments, deletions, or corrections to any such laws, ordinances, rules and regulations, including any laws, ordinances, rules and regulations which may be enacted or adopted subsequent to the date of, and which become effective during the term of, and while the property remains subject to the terms and conditions of this Loan Agreement. b. Borrower agrees to indemnify and hold BED, its officers, agents, employees, assigns and successors in interest harmless from any and all claims, demands, judgments, penalties, costs, damages, expenses or liability of any kind or character whatsoever, including court costs and reasonable attorneys' fees, arising or resulting from or connected with a breach of the foregoing covenant, it being the intent of BED and the Borrower that BED shall have no liability for damage to the environment or natural resources, for abatement, removal, or cleanup of, or otherwise with respect to, any contaminants either by virtue of any interest of BED in the property, or created as a result of BED's exercise of any of its rights or remedies under this Loan Agreement or any of the Loan Documents. c. Borrower shall, for the purposes of this Loan Agreement, be designated the "owner" or "Operator" of the property. 14. Any required or permitted notice or other communication under this Agreement shall be in writing and addressed as follows: If to BED: State of South Dakota Board of Economic Development c/o Governors Office of Economic Development 711 East Wells Avenue Pierre, SD 57501-3369 BankWest, Inc. P.O. Box 998 Pierre, S.D. 57501 If to Borrower: Gehl Company 143 Water Street West Bend, WI 53095 Notices required or permitted under this Loan Agreement shall be given by and to the Commissioner, Governor's Officer of Economic Development and Brian Thompson, Vice President of Bankwest on behalf of BED, and the Borrower or General Counsel on behalf of the Borrower, or such authorized designees as either party may from time to time designate in writing. Any such notice or other communication, if mailed, shall be sent by registered or certified mail, return receipt requested. Notices or communications to or between the parties shall be deemed to have been delivered when mailed by registered or certified mail or, if personally delivered, when received by such party. 15. Time is of the essence in the performance of the covenants, terms and conditions contained in this BED Loan Agreement. This Loan Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective transferees, successors and assigns except that the Borrower may not assign or transfer it rights under the Loan Documents without prior written consent of BED. 16. All other prior discussions, communications and representations concerning the subject matter of the Loan Documents are superseded by the terms of the Loan Documents, and except as specifically provided herein, the Loan Documents constitute the entire agreement with respect to the subject matter hereof. 17. This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota. Any lawsuit pertaining to or affecting this Loan Agreement shall be venued in Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota. 18. All representations contained in the Borrower's Application, and all representations, terms, conditions and covenants contained in the Commitment Letter executed in conjunction with this Loan Agreement are hereby incorporated by reference herein. To the extent there is a conflict between the terms of the Application or Commitment Letter and this Loan Agreement, the terms of this Loan Agreement shall prevail. 19. This Loan Agreement and the Loan Documents may not be amended except in writing, which writing shall be expressly identified as a part hereof or thereof, and which writing will be signed by an authorized representative of each of the parties. No provision stated herein shall be waived without the prior written consent of BED. 20. In the event that any provision of this Loan Agreement shall be held unenforceable or invalid by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. IN WITNESS WHEREOF the parties hereto have set their hands and seals effective the day and year above first written. SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT (SEAL) BY: /s/ Tony Klein ITS: Treasurer GEHL COMPANY BY: /s/ Kenneth P. Hahn ITS: Vice President (SEAL) ATTEST: BY: M.J. Mulcahy Its Secretary NOTE: Corporate Borrowers must execute Loan Agreement, in corporate name, by duly authorized officer, and seal must be affixed and duly attested; Limited Liability Company Borrowers must execute Loan Agreement by duly authorized Manager or by all members; Partnership Borrowers must execute Loan Agreement in firm name, together with signature of an authorized general partner. EX-4.3 6 EXHIBIT A STATE OF SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT REDI Loan Number 97-04-A PROMISSORY NOTE Madison, South Dakota $255,000.00 May 26, 1998 For value received, the undersigned GEHL COMPANY promises to pay, in lawful money of the United States of America, to the order of SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT at the offices of its Loan Servicing Agent, BankWest Inc., at P.O. Box 998, City of PIERRE, State of SOUTH DAKOTA or at holder's option, at such other place as may be designated from time to time by the holder Two Hundred Fifty-five Thousand Dollars, ($255,000.00) with interest on unpaid principal computed from the date of each advance to the undersigned at the rate of three percent per annum, payment to be made in installments as follows: By paying 59 equal (monthly) installments (based on a level 240 month amortization), each in the amount of $1,414.22, beginning thirty (30) days from the date of this Promissory Note, with the final balloon payment of principal and interest due at the end of 60 (months) from the date of this Promissory Note. This Promissory Note is issued pursuant to and is secured by a certain Revolving Economic Development and Initiative Fund (REDI) Loan Agreement dated the date hereof (the "Loan Agreement"), the terms and provisions of which are hereby incorporated by reference, by and between the Borrower and BED, pursuant to SDCL Chapters 1-16G and 1-33, as amended, and Rules and Regulations Article 68:02, Administrative Rules South Dakota (ARSD). This Promissory Note is also secured by: [X] Mortgage If any sum payable hereunder is not paid when due, then the entire outstanding principal balance shall thereafter bear interest at a specified fixed rate three (3) percentage points higher than the prime rate of interest published weekly in the Wall Street Journal per annum until paid. The Borrower shall have the option of prepaying any installment of principal or interest owing on this Promissory Note prior to the maturity date thereof without penalty. If prepayments are made, such payment will include accrued interest to the date of the prepayment on the amount of principal prepaid, and principal payments shall be reduced in inverse order of maturity. Such prepayments shall not in any way alter or suspend any obligations of the Borrower under the terms of this Promissory Note or the Loan Agreement. In the event of default in the payment of this Promissory Note, and if the same is collected by an attorney at law, the Borrower agrees to pay all costs of collection, including reasonable attorney fees. The Borrower hereby waives presentment for payment, demand, notice of nonpayment, protest, notice of protest, and notice of dishonor. This Promissory Note and all instruments or documents securing the same shall be governed by and construed in accordance with the laws of the State of South Dakota. Signed and sealed this 26th day of May, 1998. ______________________________ BORROWER (SEAL) BY: /s/ Kenneth P. Hahn ITS: Vice President ATTEST: M.J. Mulcahy BY: ITS: Secretary Note. - Corporate applicants must execute Note, in corporate name, by duly authorized officer, and seal must be affixed and duly attested; partnership applicants must execute Note in firm name, together with signature of an authorized general partner. EX-4.4 7 REDI Loan Number 97-04-A EXHIBIT B STATE OF SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT MORTGAGE - ONE HUNDRED EIGHTY DAY REDEMPTION THIS MORTGAGE is made this 26th day of May, 1998, by GEHL COMPANY, of 143 Water Street, West Bend, WI 53095 for a project at 915 S.W. 7th Street, Madison, Lake County, South Dakota, hereinafter referred to as MORTGAGOR, to the SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT, of HUGHES County, State of SOUTH DAKOTA, whose principal office is at PIERRE, HUGHES County, State of South Dakota, hereinafter referred to as MORTGAGEE. WITNESSETH: That in consideration of the advance of the principal sum as stated herein plus all future and additional advances together with interest thereon, and in consideration of any future and additional advances made to Mortgagor at Mortgagee's option, Mortgagor does hereby mortgage, grant, bargain, release, assign, transfer and convey to Mortgagee the real property and premises (the "Premises") described in Exhibit A attached hereto, and by this reference incorporated herein, together with all buildings and improvements now or hereafter erected thereon, all hereditaments and appurtenances, and all rights and interests thereunto belonging or appertaining, including rights of homestead, and all contingent rights and estates of the Mortgagor in and to said Premises, it being the intention of Mortgagor to mortgage an absolute title in fee in and to said Premises in favor of the Mortgagee, to include all of the right, title and interest of Mortgagor in said property now owned or hereafter acquired, all easements and servient estates appurtenant thereto, rents, issues, uses, profits and right to possession. Mortgagor warrants that Mortgagor is the owner in fee and is lawfully seized of said Premises; that the Premises are free and clear from all encumbrances and liens whatsoever, except for any permitted encumbrances as attached in Exhibit B. Mortgagor hereby covenants to warrant and defend the title to said Premises against any and all claims and demands of all persons whomsoever. Mortgagor hereby relinquishes and waives all rights of homestead in the Premises. THE PARTIES AGREE THAT THE PROVISIONS OF THE ONE HUNDRED EIGHTY DAY REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE. In the event Mortgagee elects to foreclose by action in state court, the holder of the certificate of sale may apply to the court for a reduction of the 180 day redemption period if the property has been abandoned by the Mortgagor. If, after notice to the parties as the court directs, the court finds the property has been abandoned, the redemption period may be reduced. The redemption period may not be reduced to less than sixty (60) days from the date of recording the certificate of sale. There is hereby granted to Mortgagee a power of sale for the purposes of SDCL Chapter 21-49. The foregoing shall not be deemed to be a waiver of Mortgagee's right to foreclose this Mortgage in federal court and seek extinguishment of all rights of redemption. This Mortgage is given by the Mortgagor as security for the following: A. Payment by Mortgagor to the Mortgagee of the principal sum of $255,000.00, together with interest thereon, according to the terms of a certain Promissory Note dated the date hereof, given by Mortgagor to Mortgagee, and any other Loan Documents or other instruments executed in refinancing, extending or renewing said indebtedness or any part thereof, all payable according to the terms of said Promissory Note, Loan Documents and other instruments; B. The repayment in full by Mortgagor of any and all future and additional advances which may be made by Mortgagee at its option, at the request of and to or for the account of Mortgagor, for any purposes, whether or not the obligation created by such future advances related to the transaction evidenced by the Promissory Note or Loan Documents and whether or not such an advance is presently contemplated by the parties; repayment to be made as provided in the Promissory Note, Loan Documents or in such other instruments; provided, further, that THIS PARAGRAPH SHALL NOT CONSTITUTE A COMMITMENT TO MAKE FUTURE OR ADDITIONAL ADVANCES IN ANY AMOUNT; C. The repayment in full by Mortgagor of all amounts advanced by Mortgagee, at its option, to or on behalf of Mortgagor as protective disbursements, as authorized in this Mortgage or in the Loan Agreement, or any other Loan Document, together with interest on all such advances, all payable as provided in this Mortgage, the Promissory Note, or other Loan Document or other instrument which may be taken to evidence such advance(s) or any part thereof; D. The payment in full by Mortgagor of any damages, including liquidated damages, awarded or imposed pursuant to the Loan Agreement or the Employment Agreement between the parties made in connection with the Loan secured hereby. E. The payment by Mortgagor of all other present or future, debts and liabilities of Mortgagor to Mortgagee of any nature whatsoever. This Mortgage is made pursuant to and secured by a certain Revolving Economic Development and Initiative (REDI) Fund Loan Agreement dated the date hereof (the "Loan Agreement"), by and between the Mortgagor and MORTGAGEE, pursuant to SDCL Chapters 1-16G and 1-33, as amended, and Rules and Regulations Article 68:02, Administrative Rules South Dakota (ARSD), the terms and provisions of which are hereby incorporated by reference. BED has entered into a Loan Servicing Agreement with BankWest, Inc., a, state chartered financial institution of Pierre, South Dakota (BankWest), whereby BankWest will act as BED's agent for purposes of closing, funding, receiving payment and servicing the BED Loan with the Borrower, and under which BankWest may take any and all such action on behalf of BED consistent with the terms of the Loan Servicing Agreement and the Borrower's BED Loan Documents including this Mortgage. Mortgagor covenants and agrees with the Mortgagee as follows: A. To pay all taxes, assessments, rents, or governmental or municipal charges, fines, rates, fees or charges levied, imposed, or charged against the Premises or the project, before the same shall become delinquent, and to pay when due all liens, judgments, or other assessments which may lawfully be assessed against the property herein mortgaged, and the rental charges upon any leases assigned as additional security. B. To insure and keep insured building and other improvements now or which may hereafter be placed on said Premises, if any, for the benefit of the Mortgagee, against loss by fire, wind, and other hazards, casualties and contingencies, with such insurers licensed to do business in the State, in such amounts, and against such risks as are customary in the State for entities of the same or similar size and type as the Mortgagor, and similarly situated with Premises and facilities of the Project's type, and provide proof of such coverage to BED. Each policy shall provide that such insurance will be payable to Mortgagee as its interest may appear. Each policy must provide that it cannot be canceled without 30 days prior written notice of cancellation. In the event of cancellation the Mortgagor will promptly obtain replacement insurance with the same or substantially similar coverage and provide proof of such coverage to BED. In the event of renewal, replacement or changes in coverage, the Mortgagor will promptly provide written notice of such changes to BED. In the event of loss, the proceeds received by Mortgagee may, at Mortgagee's option be used for the reconstruction of the destroyed or damaged improvements or, if not so applied, may, at the option of the Mortgagee, be applied to the payment of any indebtedness matured or unmatured, secured by this Mortgage. C. To keep the Premises in good condition and repair, as the same may now, or may hereafter, be placed, ordinary wear and tear excepted; to permit no mechanic's or other lien or encumbrance thereon; or to commit or permit no impairment of the value of this security. Mortgagor shall not commit or suffer waste on the Premises, and in event of such waste the Mortgagee, in addition to any other available remedy, shall be entitled immediately to restrain the same by injunction or other appropriate proceeding. Mortgagor warrants that the Premises will not be used for any unlawful purpose or permitted to become a nuisance; not to cut or remove, or permit to be cut or removed, any wood or timber from said real property; to continuously practice approved methods of farming on said Premises, to prevent erosion, and to prevent the spread of noxious or damaging weeds, and to preserve the fertility of the soil. D. That no structure or improvement of any kind whatsoever, now or hereafter in or on the mortgaged Premises, shall be removed, replaced, or substantially altered without the Mortgagee's written consent, except for that property which in the good faith opinion of the Mortgagor is obsolete, outmoded, worn out, is being replaced, or otherwise is not needed for the operation of the Project. If at any time all or any portion of the above described Premises shall be taken or damaged by condemnation proceedings under the power of eminent domain, all compensation awarded shall be paid directly to Mortgagee and, at Mortgagee's option, applied to the indebtedness hereby secured. E. That in the event Mortgagor fails to pay when due any taxes, rental charges upon any leases assigned as additional security for this Mortgage, liens, judgments, or assessments lawfully assessed against the Premises hereby mortgaged, or governmental or municipal charges, fines, rates, fees or charges levied, imposed, or charged against the Premises before the same become delinquent, or fails to maintain insurance as hereinabove provided, Mortgagee may do so, at its sole option, and without the obligation to do so, as a protective disbursement and the amount so paid, together with interest at the current rate of the Mortgagee at the time the Mortgagee makes such payment, shall, from the date of payment be added to and deemed a part of the indebtedness secured hereby, and shall be due and payable on demand by the Mortgagee; provided, however, that the advancement by Mortgagee of any sum pursuant to this paragraph shall in no manner relieve Mortgagor of any obligations incurred under this Mortgage nor limit the right of Mortgagee to declare a default by Mortgagor and to exercise all rights and remedies as set forth herein in the event of default. F. In the case of default by the Mortgagor in the payment of the principal sum, or any part thereof, or interest thereon at the time or times as specified for the payments hereof, or in the case of default in the payment of any of said advances, or in the case of any breach of any covenant or agreement contained in this Mortgage, the Loan Documents, or the Promissory Note, or related mortgages, documents and notes, or in the event of the failure of the Mortgagor to promptly pay, when due, any taxes, charges, liens, assessments, or encumbrances, or in the event of the insolvency of the Mortgagor, the Mortgagee may at its option declare this Mortgage to be in default and shall provide Mortgagor with written notice of such default. If such default has not been cured within fifteen (15)days of Mortgagor's receipt of written notice thereof, Mortgagee at its sole option, may accelerate the payment of the outstanding debt and may declare the entire unpaid principal sum including interest due thereon immediately due and payable, and if not paid within 10 days thereof this Mortgage may be foreclosed by action, or by advertisement as provided by statute or the rules or powers relating thereto, including any amendments thereof, and this paragraph shall be deemed as authorizing and constituting a power of sale as mentioned in said statutes or rules or any amendments thereof. In addition, Mortgagee may exercise any remedy set forth in any of the Loan Documents or other agreements between the parties made in connection with this Mortgage. If any sum payable hereunder is not paid when due, then the entire outstanding principal balance shall thereafter bear interest at a specified fixed rate three (3) percentage points higher than the prime rate of interest published weekly in the Wall Street Journal per annum until paid. Mortgagee may waive any default without waiving any other subsequent or prior default by Mortgagor. G. To the extent permitted by law, Mortgagor agrees that in case of any action, or in any proceedings in any court, to collect any sums payable under or secured by this Mortgage, or to protect the lien or title herein of the Mortgagee, or in any other case permitted by law, including foreclosure by action or by advertisement, in which attorney fees may be collected from Mortgagor or charged upon the above described property, to pay Mortgagee's reasonable attorney fees and actual disbursements necessarily incurred in the course of said action. H. In the event the mortgaged Premises or any portion thereof are sold, divested, transferred, relinquished, or in the event the Mortgagor should lose their right, title or interest in the security herein described, or any portion thereof during the term of this Mortgage, whether voluntarily or by operation of law, without the prior written consent of the Mortgagee, the entire indebtedness remaining unpaid and owing together with interest thereon, including advances for any purpose may at the option of the Mortgagee, be declared immediately due and payable and this Mortgage may then be foreclosed by action or by advertisement, as provided by statute or the rules or powers relating thereto. I. In the event of default in the payment of any of the obligations described in this Mortgage, Mortgagor hereby assigns to Mortgagee all of Mortgagor's interest in and to all rents, issues, uses, growing crops, profits, royalties, or lease payments due to Mortgagor from use or occupancy of any part of the Premises secured by this Mortgage; this assignment shall also pertain to all royalties, rents, or profits, due to Mortgagor for any oil, gas, mineral, or other subsurface interest in and to the above described Premises; all rents profits, lease payments, or royalties received by Mortgagee hereunder shall be applied to the indebtedness secured by this Mortgage. J. In the case of foreclosure of this Mortgage, at any time after the commencement of an action of foreclosure or at any time after the commencement of foreclosure by advertisement, or during any period of redemption, Mortgagee is authorized to appoint a receiver to take possession of the Premises if the Premises have been abandoned, or to have a receiver appointed by the court upon other sufficient proof being established therefor, said receiver to take immediate possession of the above described property, and of all the rents or profits accruing therefrom, and to rent or cultivate the same as the receiver may deem best for the interest of all parties concerned, and be liable to account to Mortgagor only for the net profits, after application of rents, issues and profits upon the expenses and costs of the receivership and foreclosure and upon the indebtedness, costs and expenses hereby secured or herein mentioned. K. Further, in the event of any action by Mortgagee to enforce the collection of the mortgage debt, Mortgagor agrees that any expense incurred to procure or extend an abstract of title, policy of title insurance or other lien search, shall, when paid by Mortgagee, become a part of the debt secured hereby, and shall be paid by Mortgagor together with all taxable costs of such action L. In the case of any default the Mortgagee shall have the privilege, without declaring the whole indebtedness due and payable, to foreclosure on account of such specific default for such sums as are in default and such foreclosure proceedings may be had and the Premises described herein may be sold, subject to the unpaid indebtedness hereby secured, and this Mortgage shall continue as a lien for any unpaid balance. If the Mortgagee waives the right to accelerate, or any other right hereunder, such a waiver shall not constitute a waiver of the right to rescind, or any other remedy available to the Mortgagee, nor shall it be construed as a waiver of such rights in the event of subsequent defaults. No remedy herein conferred upon or reserved to the Mortgagee is intended to be exclusive of any other available remedy, but each and every remedy shall be cumulative and in addition to every other remedy given under this Mortgage and the Loan Agreement, or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed as a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In the event that any breach by the Mortgagor is specifically waived in writing by the Mortgagee, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other or subsequent breach. M. Any moneys collected by the Mortgagee pursuant to foreclosure under this Mortgage shall be applied first to pay Mortgagee's attorney's fees and other expenses of collection; second to any interest, liquidated damages, and penalties due on the BED Loan; third to pay principal due on the BED Loan; fourth to pay any other amounts due under this Mortgage, the Loan Agreement, the Promissory Notes or the Loan Documents; and fifth to pay principal and interest on the BED Loan, and other amounts not yet due hereunder, as they become due, such payments to be made in the same order as set forth in this section. Mortgagor will comply with all statutes, ordinances, and governmental regulation affecting the Premises, and if Mortgagor neglects or refuses to so comply, and such failure or refusal has not been corrected within 15 days of receipt of written notice, the entire balance of the principal sum secured hereby, together with all accrued interest thereon, will, at Mortgagee's sole option, immediately become due and payable. This Mortgage shall be governed by and construed in accordance with the laws of the State of South Dakota. Terms used herein and defined in the Loan Agreement shall have the same meaning as set forth in the Loan Agreement unless the context clearly requires otherwise. This Mortgage may not be modified or amended except by mutual consent expressed in writing, which writing shall be expressly identified as a part hereof, and which writing shall be signed by an authorized representative of each of the parties hereto. Any notice provided for herein shall be deemed given when transmitted as provided in Section 14 of the Loan Agreement. The covenants in this Mortgage shall be deemed to be severable; in the event that any portion of this Mortgage is determined to be void or unenforceable, that determination shall not affect the validity of the remaining portions of the Mortgage. IN WITNESS WHEREOF, this instrument has been executed the day and year first above written. GEHL COMPANY __________________________________ (MORTGAGOR) BY:/s/ Kenneth P.Hahn Its Vice President Title ATTEST BY:/s/ M.J. Mulcahy Its Secretary Title NOTE: Corporate Borrowers must execute Mortgage, in corporate name, by duly authorized officer, and seal must be affixed and duly attested; Limited Liability Company Borrowers must execute Mortgage by duly authorized Manager or by all members; Partnership Borrowers must execute Mortgage in firm name, together with signature of an authorized general partner. CORPORATE ACKNOWLEDGMENT OPTION STATE OF WISCONSIN) ) SS COUNTY OF Washington ) On this the 26th day of May, 1998, before me, the undersigned, personally appeared Kenneth P. Hahn and Michael J. Mulcahy known to me to be the Vice President and Secretary respectively, of the corporation that is described in and that executed the within instrument, having authority to execute such instrument and acknowledged to me that such corporation executed the same. In witness whereof I hereunto set my hand and official seal. /s/ Laurence Schwartz Notary Public (SEAL) Notary Print Name: Laurence Schwartz My Commission Expires: permanent This document has been prepared by: The Office of the Attorney General 500 East Capitol Avenue Pierre, SD 57501-5070 (605) 773-3215 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lots 1,. 2, 3, and 4, in Madison Industrial Park, Madison, lake County, South Dakota; AND The North 334.4 Feet except the East 177.4 Feet Thereof of Lot 9, and the North 334.4 Feet of the W 1/2 of Lot 10, and the North 334.4 Feet of the E 1/2 of Lot 10, all in County Auditor's Fourth Addition to Madison, Lake County, South Dakota. EXHIBIT B Permitted Encumbrances: 1. Real estate tax for the year 1997 in the amount of $70,141.96 is payable but not delinquent, and real estate taxes and special assessments for subsequent years not yet due or payable. 2. Easement to Northwestern Public Service Company, dated December 20, 1972 filed January 2, 1973 at 8:35 A.M. in Book 203 Page 274, over Lot 1 of County Auditor's Fourth Addition to Madison, South Dakota, (which was replated as Madison Industrial Park) for a gas line. 3. Easement dated December 17, 1979, given to City of Madison, filed December 21, 1979 at 10:00 A.M. in book 227 Page 198, over the East 20 Feet of Lot 3, Madison Industrial Park and the East 20 Feet of the West 760 Feet of the North 334.4 Feet of Lot 10 of County Auditor's Fourth Addition to Madison, Lake Co., SD, for utilities. EXHIBIT E Description of Project: Construction of 22,400 square foot expansion onto Gehl Company's skid steer loader manufacturing facility in Madison, SD. SOURCES USES REDI $255,000 Land/Building $809,176 City of Madison $255,000 Equipment $1,428,180 Deutsche Financial Services $1,744,348 Other Costs $267,475 Equity $250,483 TOTAL $2,504,831 TOTAL $2,504,831 EX-4.5 8 STATE OF SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT REVOLVING ECONOMIC DEVELOPMENT AND INITIATIVE FUND (ARSD 68:02:01) EMPLOYMENT AGREEMENT REDI Loan Number 97-04-A EMPLOYMENT AGREEMENT, made and entered into this 26th day of May, 1998, by and between the State of South Dakota, Board of Economic Development, 711 Wells Avenue, Pierre, South Dakota 57501 (herein "BED"), and Gehl Company, of 143 Water Street, West Bend, WI 53095 for a project at 915 S.W. 7th Street, Madison, South Dakota 57042,(herein the "Borrower"). WHEREAS, Gehl Company, (the "Borrower") made an application (the "Application") dated January 20, 1997, to BED for a loan from the Revolving Economic Development and Initiative Fund (REDI), for the purposes of Borrower's business expansion or relocation in the State of South Dakota (the "Project"), as described with particularity in the Application and the BED Loan Documents, which are by this reference incorporated herein; and, WHEREAS, the Application was approved by BED and the Borrower and BED entered into a certain Revolving Economic Development and Initiative Fund (REDI) Loan Agreement dated the 26th day of May, 1998, (the "Loan Agreement"), whereby BED loaned to Borrower from the REDI Fund the sum of $255,000.00, together with interest thereon at 3.0% per annum, due and payable as set forth in the Promissory Note of even date, all pursuant to SDCL Chapter 1-33 and 1- 16G, as amended, and ARSD Article 68:02 (the "BED Loan"); and, WHEREAS, the BED Loan accrues interest at the rate of three_ percent per annum, which interest rate is below the prevailing rate available from commercial lending institutions at the time the BED Loan was made; and, WHEREAS, part of the inducement and consideration for BED to make said BED Loan to Borrower is the Project's creation of employment opportunities for South Dakota citizens, as set forth in the projections made by Borrower in the Application; and, WHEREAS, failure of Borrower to meet the projections in the Application will constitute a failure of consideration , and a default under the terms and conditions of this Employment Agreement, the Loan Agreement, Promissory Note, and other Loan Documents executed by Borrower and BED in connection with this Application, BED Loan, and Project, all of which documents are incorporated by reference herein; NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS: 1. The parties specifically agree that due to the nature of the consideration for the BED Loan to the Borrower it is impracticable or extremely difficult to fix the actual damages resulting from the breach of this Employment Agreement, the Loan Agreement, the Promissory Note, or the other Loan Documents. 2. The parties specifically agree that it will constitute a default under the terms and conditions of this Employment Agreement and the Loan Agreement if the Borrower fails to meet the employment projections set forth in the Application, or substantially changes the nature of the Project or ceases operations or relocates the business or Project from Madison, South Dakota, so that there is a loss of the employment created by the Project in that area of the State, within five years from the date of this Employment Agreement or the term of the BED Loan whichever is longer. In the event of default, BED at its sole option, may accelerate the payment of the outstanding debt by providing written notice to the Borrower, and may declare the entire unpaid principal sum including interest due thereon immediately due and payable. Borrower shall, to the extent the principal amount of the BED Loan shall not have been repaid, immediately repay the remaining principal amount of the BED Loan in full, plus all unpaid accrued interest thereon, and, in addition, shall pay liquidated damages, and if not paid within 10 days thereof this Employment Agreement may be enforced through any remedy conferred by the loan documents or any applicable law. It is agreed that liquidated damages will be computed as follows: Damages shall be an amount equal to the difference between the total interest paid on each payment date prior to the final payment of the BED Loan and on the final payment date (whether at maturity or upon prepayment) and the total interest that would have been paid on those dates had the BED Loan been made at 9.0%, the current commercial rate at the time of this Employment Agreement, rather than 3.0%, the interest rate at which BED made the BED Loan to Borrower. If BED demands such liquidated damages five years or more after the date of the Loan Agreement, and each monthly installment payment and the final payment on the BED Loan shall have been made when due without prepayment, and if no default exists, then the damages due and owing to BED will be $52,800.00. . 3. This Employment Agreement is made as additional security for the Loan Agreement. 4. This Employment Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota. Any lawsuit pertaining to or affecting this Employment Agreement shall be venued in Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota. 5. This Employment Agreement may not be modified or amended except by mutual consent expressed in writing, which writing shall be expressly identified as a part hereof, and which writing shall be signed by an authorized representative of each of the parties hereto. 6. Any notice provided for herein shall be deemed given when transmitted as provided in Section 14 of the Loan Agreement. 7. The covenants in this Employment Agreement shall be deemed to be severable; in the event that any portion of this Employment Agreement is determined to be void or unenforceable, that determination shall not affect the validity of the remaining portions of the Employment Agreement. 8. Terms used herein and defined in the Loan Agreement shall have the same meaning as set forth in the Loan Agreement unless the context clearly requires otherwise. 9. Time is of the essence in the performance of the covenants, terms and conditions contained in this Employment Agreement. This Employment Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective transferees, successors and assigns except that the Borrower may not assign or transfer it rights under the Loan Documents without prior written consent of BED Dated this 26th day of May, 1998. SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT BY: /s/ Tony Klein ITS: Treasurer GEHL COMPANY BY: /s/ Kenneth P. Hahn ITS: Vice President (SEAL) ATTEST: M.J. Mulcahy BY: /s/ M.J. Mulcahy Its: Secretary NOTE: Corporate Borrowers must execute Employment Agreement, in corporate name, by duly authorized officer, and seal must be affixed and duly attested; Limited Liability Company Borrowers must execute Employment Agreement by duly authorized Manager or by all members; Partnership Borrowers must execute Employment Agreement in firm name, together with signature of an authorized general partner. EX-27 9
5 This schedule contains summary financial information extracted from Gehl Company's consolidated balance sheet at June 27, 1998 and consolidated statements of income for the six month period ended June 27, 1998 and is qualified in its entirety by reference to such financial statements. 1000 6-MOS DEC-31-1998 JAN-1-1998 JUN-27-1998 6380 0 95850 0 26953 134822 74284 39732 193264 53760 47355 640 0 0 86141 193264 136519 136519 99493 99493 0 0 2427 12207 4333 7874 0 0 0 7874 1.24 1.18 Company presents receivables on a net basis in compliance with Article 10 of Regulation S-X. Includes all non-current portion of debt obligations. The EPS under the "EPS-Primary" tag represents Basic Earnings Per Share.
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