-----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, FSq2edRbIErzyYIGgcH2UTCN3JflXk/k7JzoBZFDy4lHJQYXXfZORCNMum7ff3l/ QSqLm1zbR6wEYiWAOWyHAQ== 0000897069-03-000828.txt : 20030731 0000897069-03-000828.hdr.sgml : 20030731 20030731163840 ACCESSION NUMBER: 0000897069-03-000828 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20030630 FILED AS OF DATE: 20030731 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OSHKOSH TRUCK CORP CENTRAL INDEX KEY: 0000775158 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 390520270 STATE OF INCORPORATION: WI FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-31371 FILM NUMBER: 03815144 BUSINESS ADDRESS: STREET 1: 2307 OREGON ST STREET 2: P O BOX 2566 CITY: OSHKOSH STATE: WI ZIP: 54903 BUSINESS PHONE: 4142359151 MAIL ADDRESS: STREET 1: 2307 OREGON ST P O BOX 2566 STREET 2: 2307 OREGON ST P O BOX 2566 CITY: OSHKOSH STATE: WI ZIP: 54903 10-Q 1 cmw58.txt QUARTERLY REPORT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-Q (Mark One) (x) Quarterly Report Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934 For the quarterly period ended June 30, 2003. 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 1-31371 Oshkosh Truck Corporation ------------------------------------------------------ [Exact name of registrant as specified in its charter] Wisconsin 39-0520270 - ------------------------------- -------------------- [State or other jurisdiction of [I.R.S. Employer incorporation or organization] Identification No.] 2307 Oregon Street, P.O. Box 2566, Oshkosh, Wisconsin 54903 - ----------------------------------------------------- ----- [Address of principal executive offices] [Zip Code] Registrant's telephone number, including area code (920) 235-9151 -------------- None --------------------------------------------------------------- [Former name, former address and former fiscal year, if changed since last report] 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 by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). 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 A Common Stock Outstanding as of July 25, 2003: 407,914 - ------------------------------------------------------------------- Common Stock Outstanding as of July 25, 2003: 16,703,370 - ------------------------------------------------------------------- OSHKOSH TRUCK CORPORATION FORM 10-Q INDEX FOR THE QUARTER ENDED JUNE 30, 2003
Page Part I. Financial Information Item 1. Financial Statements (Unaudited) Condensed Consolidated Statements of Income - Three Months and Nine Months Ended June 30, 2003 and 2002....................................................3 Condensed Consolidated Balance Sheets - June 30, 2003 and September 30, 2002.......................................4 Condensed Consolidated Statement of Shareholders' Equity - Nine Months Ended June 30, 2003............................................5 Condensed Consolidated Statements of Cash Flows - Nine Months Ended June 30, 2003 and 2002...................................6 Notes to Condensed Consolidated Financial Statements - June 30, 2003..............................................................7 Item 2. Management's Discussion and Analysis of Consolidated Financial Condition and Results of Operations...............................29 Item 3. Quantitative and Qualitative Disclosures about Market Risk.................................................................44 Item 4. Controls and Procedures..........................................................45 Part II. Other Information Item 1. Legal Proceedings................................................................46 Item 6. Exhibits and Reports on Form 8-K.................................................46 Signatures.........................................................................................47
2 PART I. ITEM 1. FINANCIAL INFORMATION OSHKOSH TRUCK CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
Three Months Ended Nine Months Ended June 30, June 30, 2003 2002 2003 2002 ---- ---- ---- ---- (In thousands, except per share amounts) Net sales $ 538,183 $ 489,532 $1,417,896 $1,266,630 Cost of sales 456,571 410,272 1,212,853 1,077,850 ---------- ---------- ---------- ---------- Gross income 81,612 79,260 205,043 188,780 Operating expenses: Selling, general and administrative 39,100 39,392 114,573 104,636 Amortization of purchased intangibles 1,621 1,506 4,830 4,421 ---------- ---------- ---------- ---------- Total operating expenses 40,721 40,898 119,403 109,057 ---------- ---------- ---------- ---------- Operating income 40,891 38,362 85,640 79,723 Other income (expense): Interest expense (3,273) (5,209) (10,179) (17,248) Interest income 306 344 800 900 Miscellaneous, net (465) (174) (140) (373) ---------- ---------- ---------- ---------- (3,432) (5,039) (9,519) (16,721) ---------- ---------- ---------- ---------- Income before provision for income taxes and equity in earnings of unconsolidated partnership 37,459 33,323 76,121 63,002 Provision for income taxes 13,796 12,276 28,178 22,286 ---------- ---------- ---------- ---------- Income before equity in earnings of unconsolidated partnership 23,663 21,047 47,943 40,716 Equity in earnings of unconsolidated partnership, net of income taxes 546 527 1,672 1,633 ---------- ---------- ---------- ---------- Net income $ 24,209 $ 21,574 $ 49,615 $ 42,349 ========== ========== ========== ========== Earnings per share $ 1.42 $ 1.28 $ 2.92 $ 2.52 Earnings per share assuming dilution $ 1.39 $ 1.24 $ 2.85 $ 2.45 Cash dividends: Class A Common Stock $ 0.10000 $ 0.07500 $ 0.25000 $ 0.22500 Common Stock $ 0.11500 $ 0.08625 $ 0.28750 $ 0.25875
The accompanying notes are an integral part of these condensed consolidated financial statements. 3 OSHKOSH TRUCK CORPORATION CONDENSED CONSOLIDATED BALANCE SHEETS (Unaudited)
June 30, September 30, 2003 2002 ---- ---- (In thousands) ASSETS Current assets: Cash and cash equivalents $ 39,718 $ 40,039 Receivables, net 170,236 142,709 Inventories 228,319 210,866 Prepaid expenses 8,800 7,414 Deferred income taxes 34,019 26,008 ---------- ---------- Total current assets 481,092 427,036 Investment in unconsolidated partnership 23,434 22,274 Other long-term assets 21,147 11,625 Property, plant and equipment 275,439 261,045 Less accumulated depreciation (131,734) (120,684) ---------- ---------- Net property, plant and equipment 143,705 140,361 Purchased intangible assets, net 100,953 104,316 Goodwill 336,408 318,717 ---------- ---------- Total assets $1,106,739 $1,024,329 ========== ========== LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable $ 106,039 $ 116,422 Floor plan notes payable 24,861 23,801 Customer advances 159,829 119,764 Payroll-related obligations 32,881 34,474 Income taxes 21,520 8,597 Accrued warranty 28,001 24,015 Other current liabilities 56,517 47,754 Revolving credit facility and current maturities of long-term debt 225 18,245 ---------- ---------- Total current liabilities 429,873 393,072 Long-term debt 101,514 131,713 Deferred income taxes 41,088 39,303 Other long-term liabilities 51,318 50,481 Commitments and contingencies - Note 11 Shareholders' equity 482,946 409,760 ---------- ---------- Total liabilities and shareholders' equity $1,106,739 $1,024,329 ========== ==========
The accompanying notes are an integral part of these condensed consolidated financial statements. 4 OSHKOSH TRUCK CORPORATION CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY NINE MONTHS ENDED JUNE 30, 2003 (Unaudited)
Accumulated Common Stock Other Common Paid-In Retained in Treasury Unearned Comprehensive Stock Capital Earnings at Cost Compensation Income Total ----- ------- -------- ------- ------------ ------ ----- (In thousands) Balance at September 30, 2002 $ 178 $ 117,179 $ 300,713 $ (7,636) $ (4,086) $ 3,412 $ 409,760 Net income - - 49,615 - - - 49,615 Loss on derivative instruments (net of income tax benefit of $2,074) - - - - - (3,531) (3,531) Currency translation adjustments - - - - - 26,903 26,903 Cash dividends: Class A Common Stock - - (93) - - - (93) Common Stock - - (4,312) - - - (4,312) Amortization of unearned compensation - - - - 514 - 514 Exercise of stock options - 897 - 1,168 - - 2,065 Tax benefit related to stock options exercised - 2,025 - - - - 2,025 ------ --------- --------- -------- -------- -------- --------- Balance at June 30, 2003 $ 178 $ 120,101 $ 345,923 $ (6,468) $ (3,572) $ 26,784 $ 482,946 ====== ========= ========= ======== ======== ======== =========
The accompanying notes are an integral part of these condensed consolidated financial statements. 5 OSHKOSH TRUCK CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
Nine Months Ended June 30, 2003 2002 ---- ---- (In thousands) Operating activities: Net income $ 49,615 $ 42,349 Non-cash adjustments 10,043 8,550 Changes in operating assets and liabilities 10,540 124,271 ---------- ---------- Net cash provided from operating activities 70,198 175,170 Investing activities: Additions to property, plant and equipment (16,753) (6,883) Proceeds from sale of assets 3,770 5 Decrease (increase) in other long-term assets (7,910) 309 ---------- ---------- Net cash used for investing activities (20,893) (6,569) Financing activities: Net repayments under revolving credit facility - (65,200) Repayment of long-term debt (48,241) (93,855) Dividends paid (4,395) (4,326) Other 2,065 1,961 ---------- ---------- Net cash used for financing activities (50,571) (161,420) Effect of exchange rate changes on cash 945 549 ---------- ---------- Increase (decrease) in cash and cash equivalents (321) 7,730 Cash and cash equivalents at beginning of period 40,039 11,312 ---------- ---------- Cash and cash equivalents at end of period $ 39,718 $ 19,042 ========== ========== Supplementary disclosures: Depreciation and amortization $ 18,943 $ 18,720 Cash paid for interest 8,151 14,517 Cash paid for income taxes 18,198 35,925
The accompanying notes are an integral part of these condensed consolidated financial statements. 6 OSHKOSH TRUCK CORPORATION NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS JUNE 30, 2003 (In thousands, except share and per share amounts) (Unaudited) 1. BASIS OF PRESENTATION - -------------------------- The condensed consolidated financial statements included herein have been prepared by Oshkosh Truck Corporation (the "Company") without audit. However, the foregoing financial statements contain all adjustments (which include normal recurring adjustments except as disclosed herein) that are, in the opinion of Company management, necessary to present fairly the condensed consolidated financial statements. Operating results for the periods presented may not be indicative of the annual results. Certain reclassifications have been made to the fiscal 2002 financial statements to conform to the fiscal 2003 presentation. 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 the rules and regulations of the Securities and Exchange Commission. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the year ended September 30, 2002. 2. NEW ACCOUNTING STANDARDS - ----------------------------- In November 2002, the Financial Accounting Standards Board ("FASB") issued Financial Interpretation No. ("FIN") 45, "Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others." FIN 45 requires certain guarantees to be recorded at fair value and requires a guarantor to make significant new disclosures, even when the likelihood of making any payments under the guarantee is remote. Generally, FIN 45 applies to certain types of financial guarantees that contingently require the guarantor to make payments to the guaranteed party based on changes in an underlying that is related to an asset, liability, or an equity security of the guaranteed party; performance guarantees involving contracts which require the guarantor to make payments to the guaranteed party based on another entity's failure to perform under an obligating agreement; indemnification agreements that contingently require the guarantor to make payments to an indemnified party based on changes in an underlying that is related to an asset, liability, or an equity security of the indemnified party; or indirect guarantees of the indebtedness of others. The initial recognition and initial measurement provisions of FIN 45 are applicable on a prospective basis to guarantees issued or modified after December 31, 2002. Disclosure requirements under FIN 45 are effective for financial statements ending after December 15, 2002 and are applicable to all 7 guarantees issued by the guarantor subject to FIN 45's scope, including guarantees issued prior to FIN 45. The adoption of FIN 45 did not have a material effect on the Company's financial condition, results of operations or cash flows (see Note 12). In December 2002, the FASB issued Statement of Financial Accounting Standards ("SFAS") No. 148, "Accounting for Stock-Based Compensation--Transition and Disclosure." SFAS No. 148 amends SFAS No. 123, "Accounting for Stock-Based Compensation," to provide alternative methods of transition to SFAS No. 123's fair value method for accounting for stock-based employee compensation. SFAS No. 148 also amends the disclosure provisions of SFAS No. 123 and Accounting Principles Board ("APB") Opinion No. 28, "Interim Financial Reporting," to require disclosure in the summary of significant accounting policies of the effects of an entity's accounting policy with respect to stock-based employee compensation on reported net income and earnings per share in annual and interim financial statements. The Company adopted early the disclosure provisions of SFAS No. 148 as of October 1, 2002 and has included the required disclosures in Note 10. In January 2003, the FASB issued FIN 46, "Consolidation of Variable Interest Entities" ("FIN 46"). The interpretation provides consolidation accounting guidance for variable interest entities. Variable interests arise from financial instruments, service contracts, minority ownership interests or other arrangements. If an entity holds a majority of the variable interests, then that entity is the primary beneficiary. The primary beneficiary is required to include the assets, liabilities and results of activities of the variable interest entity in its consolidated financial statements. The consolidation requirements of FIN 46 apply immediately to variable interest entities created after January 31, 2003. The consolidation requirements of FIN 46 apply to existing entities in the first fiscal year or interim period beginning after June 15, 2003. Also, certain disclosure requirements apply to all financial statements issued after January 31, 2003, regardless of when the variable interest entity was established. The Company has conducted an assessment of the activities of Oshkosh/McNeilus Financial Services Partnership, an unconsolidated general partnership ("OMFSP"), and determined that OMFSP is a voting interest entity (rather than a variable interest entity) based on the material participation of each partner in OMFSP's activities and the equal voting, participating and protective rights of each partner. As such, FIN 46 does not apply to the Company's investment in OMFSP. Accordingly, the Company does not expect its adoption of FIN 46 on July 1, 2003, to have any impact on its accounting for its interest in OMFSP. 8 3. COMPREHENSIVE INCOME - ----------------------- Total comprehensive income is as follows:
Three Months Ended Nine Months Ended June 30, June 30, 2003 2002 2003 2002 ---- ---- ---- ---- (In thousands) Net income $ 24,209 $ 21,574 $ 49,615 $ 42,349 Currency translation adjustments 10,913 19,618 26,903 13,537 Derivative instruments, net of income taxes (3,498) 78 (3,531) 63 --------- --------- --------- --------- Comprehensive income $ 31,624 $ 41,270 $ 72,987 $ 55,949 ========= ========= ========= =========
4. EARNINGS PER SHARE - ----------------------- The following table sets forth the computation of basic and diluted weighted average shares used in the denominator of the per share calculations:
Three Months Ended Nine Months Ended June 30, June 30, 2003 2002 2003 2002 ---- ---- ---- ---- Denominator for basic earnings per share 17,014,692 16,883,214 16,981,247 16,795,522 Effect of dilutive options and incentive compensation awards 424,241 471,488 442,966 466,369 ---------- ---------- ---------- ---------- Denominator for dilutive earnings per share 17,438,933 17,354,702 17,424,213 17,261,891 ========== ========== ========== ==========
In fiscal 2003, options granted on February 4, 2003 to purchase 27,000 shares at $62.47 per share and, in fiscal 2002, options granted on February 8, 2002 to purchase 30,000 shares at $55.00 per share and options granted on June 3, 2002 to purchase 5,000 shares at $58.56 per share were outstanding, but were not included in the computation of diluted earnings per share because the exercise price of the options was greater than the average market price of the Common Stock, and therefore, the effect would have been anti-dilutive. 9 5. INVENTORIES - ---------------- Inventories consist of the following: June 30, September 30, 2003 2002 ---- ---- (In thousands) Finished products $ 73,560 $ 67,147 Partially finished products 111,638 89,742 Raw materials 117,807 121,596 -------- -------- Inventories at FIFO cost 303,005 278,485 Less: Performance-based payments on U.S. government contracts (58,725) (54,368) Excess of FIFO cost over LIFO cost (15,961) (13,251) -------- -------- $228,319 $210,866 ======== ======== Title to all inventories related to government contracts, which provide for performance-based payments, vests with the government to the extent of unliquidated performance-based payments. 6. INVESTMENT IN UNCONSOLIDATED PARTNERSHIP - --------------------------------------------- The Company and an unaffiliated third party are general partners in OMFSP. OMFSP was formed in 1998 when each partner contributed existing lease assets (and in the case of the Company, related notes payable to third party lenders that were secured by such leases) to capitalize the partnership. OMFSP manages the contributed assets and liabilities and engages in new vendor lease business providing financing, primarily to customers of the Company. OMFSP purchases trucks, truck bodies and concrete batch plants from the Company, the Company's affiliates and, occasionally, unrelated third parties for lease to user-lessees. Banks and other third party financial institutions lend to OMFSP a portion of the purchase price, with recourse solely to OMFSP, secured by a pledge of lease payments due from the user-lessees. Each partner funds one-half of the approximate 8.0% equity portion of the cost of new equipment purchases. Customers typically provide a 2.0% down payment. Each partner is allocated its proportionate share of OMFSP's cash flow and taxable income in accordance with the partnership agreement. Indebtedness of OMFSP is secured by the underlying leases and assets of, and is recourse to, OMFSP. However, all such OMFSP indebtedness is non-recourse to the Company and its partner. Each of the two general partners has identical voting, participating and protective rights and responsibilities, and each general partner materially participates in the activities of OMFSP. For these and other reasons, the Company has determined that OMFSP is a voting interest entity for purposes of FIN 46. Accordingly, the Company accounts for its equity interest in OMFSP under the equity method. The Company's investment in OMFSP of $23.4 million at June 30, 2003 included in the Company's Condensed Consolidated Balance Sheet represents 10 the Company's maximum exposure to loss as a result of the Company's ownership interest in OMFSP. This exposure is a non-cash exposure. Further, the Company has recorded deferred income tax liabilities related to its investment in OMFSP of $21.4 million at June 30, 2003 that were included in long-term deferred income tax liabilities in the Company's Condensed Consolidated Balance Sheet. Should the Company's investment in OMFSP be liquidated for any reason, this deferred income tax liability would reverse and result in an increase in current income taxes payable by the Company. Summarized financial information of OMFSP is as follows: June 30, September 30, 2003 2002 ---- ---- (In thousands) Cash and cash equivalents $ 3,086 $ 2,037 Investments in sales-type leases, net 208,055 209,440 Other assets 682 553 -------- -------- $211,823 $212,030 ======== ======== Notes payable $165,896 $166,442 Other liabilities 2,218 4,146 Partners' equity 43,709 41,442 -------- -------- $211,823 $212,030 ======== ======== Nine Months Ended June 30, 2003 2002 ---- ---- (In thousands) Interest income $ 11,542 $ 12,290 Net interest income 3,259 3,278 Excess of revenues over expenses 3,378 3,233 11 7. PURCHASED INTANGIBLE ASSETS AND GOODWILL - --------------------------------------------- The following tables present details of the Company's purchased intangible assets:
June 30, 2003 ------------------------------------------------ Weighted- Average Accumulated Life Gross Amortization Net ---- ----- ------------ --- (Years) (In thousands) Amortizable: Distribution network 40.0 $ 53,000 $ (8,982) $ 44,018 Non-compete 14.5 40,140 (14,653) 25,487 Technology-related 17.7 21,254 (5,098) 16,156 Other 9.8 10,423 (1,564) 8,859 --------- --------- --------- 25.5 124,817 (30,297) 94,520 Non-amortizable tradenames 6,433 - 6,433 --------- --------- --------- Total $ 131,250 $ (30,297) $ 100,953 ========= ========= ========= September 30, 2002 ------------------------------------------------ Weighted- Average Accumulated Life Gross Amortization Net ---- ----- ------------ --- (Years) (In thousands) Amortizable: Distribution network 40.0 $ 53,000 $ (7,988) $ 45,012 Non-compete 14.5 40,120 (12,350) 27,770 Technology-related 17.8 20,554 (4,070) 16,484 Other 9.9 10,313 (979) 9,334 --------- --------- --------- 25.5 123,987 (25,387) 98,600 Non-amortizable tradenames 5,716 - 5,716 --------- --------- --------- Total $ 129,703 $ (25,387) $ 104,316 ========= ========= =========
Amortization expense recorded for the nine months ended June 30, 2003 and 2002 was $4.8 million and $4.4 million, respectively. The estimated future amortization expense of purchased intangible assets as of June 30, 2003 is as follows (in thousands): 12 Fiscal Year Ending September 30, Amount - -------------------------------- ------ 2003 (remaining three months) $ 1,540 2004 6,266 2005 6,221 2006 6,000 2007 5,866 2008 5,866 Future 62,761 ------- $94,520 ======= The following table presents the changes in goodwill during the nine months ended June 30, 2003: Balance at Foreign Currency Balance at September 30, Translation June 30, Segment 2002 Adjustment 2003 ------- ---- ---------- ---- (In thousands) Commercial $ 219,375 $ 17,691 $ 237,066 Fire and emergency 99,342 - 99,342 --------- -------- --------- Total $ 318,717 $ 17,691 $ 336,408 ========= ======== ========= 8. FINANCIAL INSTRUMENTS - -------------------------- Historically, the Company has used forward foreign exchange contracts to reduce the exchange rate risk of specific foreign currency transactions. These contracts require the exchange of a foreign currency for U.S. dollars at a fixed rate at a future date. To protect against a reduction in value of certain forecasted foreign currency cash receipts from export sales from April 2004 through December 2006 that will be denominated in British Pounds Sterling and to protect against increases in costs of purchases of certain components from December 2003 through October 2006 that are payable in euros, each in connection with the Company's contract to provide certain tactical military truck systems to the United Kingdom Ministry of Defence ("MoD"), the Company has instituted a foreign currency cash flow hedging program. The Company has hedged a significant portion of its estimated foreign currency cash flows in connection with this contract. At June 30, 2003, outstanding foreign exchange forward contracts totaled $314.1 million in notional amounts, including $229.2 million in contracts to sell British Pounds Sterling, $0.8 million in contracts to purchase British Pounds Sterling, $80.5 million in contracts to purchase euros and $3.6 million in contracts to sell Canadian dollars. Net unrealized losses (net of related tax effect of $2.1 million) on outstanding foreign 13 exchange forward contracts at June 30, 2003 totaled $3.5 million and have been included in Accumulated Other Comprehensive Income. As of June 30, 2003, the Company expects to reclassify $0.2 million of net losses on derivative instruments from Accumulated Other Comprehensive Income to earnings during the next twelve months due to actual export sales and purchases denominated in foreign currencies. 9. LONG-TERM DEBT - ------------------- The Company has outstanding a $170.0 million revolving credit facility ("Revolving Credit Facility") with no borrowings outstanding at June 30, 2003. In June 2003, the Company prepaid the remaining balance of $36.0 million then outstanding under its Term Loan A that was scheduled to mature in January 2006. At June 30, 2003, $21.6 million of outstanding letters of credit reduced available capacity under the Revolving Credit Facility to $148.4 million. Substantially all the domestic tangible and intangible assets of the Company and its subsidiaries (including the stock of certain subsidiaries) are pledged as collateral under the Revolving Credit Facility. The Revolving Credit Facility includes customary affirmative and negative covenants. The Company has outstanding $100.0 million of 8.75% senior subordinated notes. The Indenture governing the terms of the senior subordinated notes contains customary affirmative and negative covenants. The Subsidiary Guarantors (as defined below in Note 15) fully, unconditionally, jointly and severally guarantee the Company's obligations under the senior subordinated notes. Certain of the Company's subsidiaries have outstanding debt to third parties totaling $1.7 million as of June 30, 2003. 10. STOCK-BASED EMPLOYEE COMPENSATION PLANS - -------------------------------------------- At June 30, 2003, the Company had one stock-based employee compensation plan, which is described more fully in Note 10 to the Notes to Consolidated Financial Statements in the Company's Annual Report on Form 10-K for the year ended September 30, 2002. The Company accounts for this stock-based plan under the recognition and measurement principles of APB Opinion No. 25, "Accounting for Stock Issued to Employees," and related Interpretations. Except for restricted stock awards granted in September 2002, no stock-based employee compensation cost was reflected in previously reported results for any period, as all options granted under this plan had an exercise price equal to the market value of the underlying Common Stock on the measurement date. The following table illustrates the effect on net income and earnings per share if the Company had applied the fair value recognition provisions 14 of SFAS No. 123, "Accounting for Stock-Based Compensation," to stock-based employee compensation:
Three Months Ended Nine Months Ended June 30, June 30, 2003 2002 2003 2002 ---- ---- ---- ---- (In thousands, except per share amounts) Net income, as reported $ 24,209 $ 21,574 $ 49,615 $ 42,349 Add: Stock-based employee compensation expense recorded for restricted stock awards, net of related tax effects 172 - 514 - Deduct: Total stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects (902) (566) (2,700) (1,659) -------- -------- -------- -------- (730) (566) (2,186) (1,659) -------- -------- -------- -------- Pro forma net income $ 23,479 $ 21,008 $ 47,429 $ 40,690 ======== ======== ======== ======== Earnings per share: As reported $ 1.42 $ 1.28 $ 2.92 $ 2.52 Pro forma 1.38 1.24 2.79 2.42 Earnings per share assuming dilution: As reported $ 1.39 $ 1.24 $ 2.85 $ 2.45 Pro forma 1.34 1.21 2.71 2.35
11. COMMITMENTS AND CONTINGENCIES - ---------------------------------- As part of its routine business operations, the Company disposes of and recycles or reclaims certain industrial waste materials, chemicals and solvents at third party disposal and recycling facilities, which are licensed by appropriate governmental agencies. In some instances, these facilities have been and may be designated by the United States Environmental Protection Agency ("EPA") or a state environmental agency for remediation. Under the Comprehensive Environmental Response, Compensation, and Liability Act (the "Superfund" law) and similar state laws, each potentially responsible party ("PRP") that contributed hazardous substances may be jointly and severally liable for the costs associated with cleaning up the site. Typically, PRPs negotiate for the costs associated with cleaning up the site. Typically, PRPs negotiate a resolution with the EPA and/or the state environmental agencies. PRPs also negotiate with each other regarding allocation of the cleanup cost. As to one such Superfund site, the Company's Pierce Manufacturing Inc. ("Pierce")subsidiary is one of 380 PRPs participating in the costs of addressing the site and has been assigned an allocation share of approximately 0.04%. 15 Currently, a report of the remedial investigation/feasibility study is being completed, and as such, an estimate for the total cost of the remediation of this site has not been made to date. However, based on estimates and the assigned allocations, the Company believes its liability at the site will not be material and its share is adequately covered through reserves established by the Company at June 30, 2003. Actual liability could vary based on results of the study, the resources of other PRPs, and the Company's final share of liability. In 2003, the Company and Pierce, along with approximately 72 other companies, received notice from the EPA that each were being designated as a PRP for the Amber Oil site in Milwaukee, Wisconsin. The Company's records show that in the early-to mid 1990s, the Company and Pierce sent to the site, for trans-shipment, small volumes (less than 15,000 total gallons)of non-hazardous waste waters. In May 2003, the Company entered into a PRP agreement with approximately 50 other companies to jointly defend and respond to PRP claims asserted by the EPA and to allocate among PRP members the costs incurred in connection with this matter. The Company believes that its liability at this site will not be material and its share is adequately covered through reserves established by the Company at June 30, 2003. Actual liability could vary based on the actual remediation cost, the resources of other PRPs, and the Company's final share of any liability. The Company is addressing a regional trichloroethylene ("TCE") groundwater plume on the south side of Oshkosh, Wisconsin. The Company believes there may be multiple sources in the area. TCE was detected at the Company's North Plant facility with testing showing the highest concentrations in a monitoring well located on the upgradient property line. Because the investigation process is still ongoing, it is not possible for the Company to estimate its liability, if any, associated with this issue at this time. Also, as part of the regional TCE groundwater investigation, the Company conducted a groundwater investigation of a former landfill located on Company property. The landfill, acquired by the Company in 1972, is approximately 2.0 acres in size and is believed to have been used for the disposal of household waste. Based on the investigation, the Company does not believe the landfill is one of the sources of the TCE contamination. Based upon current knowledge, the Company believes the ultimate liability associated with the TCE issue will not be materially different than the amount of reserves established for the matter as of June 30, 2003. However, this may change as investigations proceed by the Company, other unrelated property owners, and the government. In connection with the acquisition of the Geesink Norba Group, the Company identified potential soil and groundwater contamination impacts from solvents and metals at one of its manufacturing sites. The Company is conducting a study to identify the source of the contamination. Based on current estimates, the Company believes its liability at this site will not be material and any responsibility of the Company is adequately covered through reserves established by the Company at June 30, 2003. 16 The Company is subject to other environmental matters and legal proceedings and claims, including patent, antitrust, product liability and state dealership regulation compliance proceedings, which arise in the ordinary course of business. Although the final results of all such matters and claims cannot be predicted with certainty, management believes that the ultimate resolution of all such matters and claims, after taking into account the liabilities accrued with respect to such matters and claims, will not have a material adverse effect on the Company's financial condition, results of operations or cash flows. Actual results could vary, among other things, due to the uncertainties involved in litigation. The Company is also contingently liable under bid, performance and specialty bonds totaling approximately $131.1 million and open standby letters of credit issued by the Company's bank in favor of third parties totaling approximately $21.6 million at June 30, 2003. 12. WARRANTY AND GUARANTEE ARRANGEMENTS - ---------------------------------------- The Company's products generally carry explicit warranties that extend from six months to two years, based on terms that are generally accepted in the marketplace. Selected components (such as engines, transmissions, tires, etc.) included in the Company's end products may include manufacturers' warranties. These manufacturers' warranties are generally passed on to the end customer of the Company's products, and the customer would generally deal directly with the component manufacturer. The Company's policy is to record a provision for the expected cost of warranty-related claims at the time of the sale, and periodically adjust the provision to reflect actual experience. The amount of warranty liability accrued reflects management's best estimate of the expected future cost of honoring Company obligations under the warranty plans. Historically, the cost of fulfilling the Company's warranty obligations has principally involved replacement parts, labor and sometimes travel for any field retrofit campaigns. The Company's estimates are based on historical experience, the extent of pre-production testing, the number of units involved and the extent of features/components included in product models. Also, each quarter, the Company reviews actual warranty claims experience to determine if there are systemic defects that would require a field campaign. 17 Changes in the Company's warranty liability during the nine months ended June 30, 2003 were as follows (in thousands): Balance at September 30, 2002 $ 24,015 Warranty provisions for the period 15,026 Settlements made during the period (15,632) Changes in liability for pre-existing warranties during the period, including expirations 4,166 Foreign currency translation adjustment 426 -------- Balance at June 30, 2003 $ 28,001 ======== In the fire and emergency segment, the Company provides guarantees of lease payments by customer-lessees to a third-party lessor of equipment purchased from the Company. The guarantee is limited to $1.0 million per year in total and is supported by the residual value of the related equipment. The Company's actual losses under these guarantees over the last ten years have been negligible. In accordance with FIN 45, no liabilities for pre-January 1, 2003 guarantees have been recorded. For all such guarantees issued after January 1, 2003, the Company has recorded the fair value of the guarantee as a liability and a reduction of the initial revenue recognized on the sale of equipment. Amounts recorded since January 1, 2003 were not significant. 18 13. BUSINESS SEGMENT INFORMATION - ---------------------------------
Three Months Ended Nine Months Ended June 30, June 30, 2003 2002 2003 2002 ---- ---- ---- ---- (In thousands) Net sales to unaffiliated customers: Commercial $ 213,585 $ 204,535 $ 562,734 $ 503,942 Fire and emergency 148,345 123,956 402,887 339,504 Defense 178,779 162,774 457,939 426,475 Intersegment eliminations (2,526) (1,733) (5,664) (3,291) --------- --------- ---------- ---------- Consolidated $ 538,183 $ 489,532 $1,417,896 $1,266,630 ========= ========= ========== ========== Operating income (loss): Commercial $ 15,011 $ 17,747 $ 34,047 $ 37,204 Fire and emergency 16,113 14,461 40,453 33,824 Defense 16,913 14,965 33,239 28,094 Corporate and other (7,146) (8,811) (22,099) (19,399) --------- --------- ---------- ---------- Consolidated operating income 40,891 38,362 85,640 79,723 Net interest expense (2,967) (4,865) (9,379) (16,348) Miscellaneous other (465) (174) (140) (373) --------- --------- ---------- ---------- Income before provision for income taxes and equity in earnings of unconsolidated partnership $ 37,459 $ 33,323 $ 76,121 $ 63,002 ========= ========= ========== ==========
June 30, September 30, 2003 2002 ---- ---- (In thousands) Identifiable assets: Commercial $ 651,550 $ 593,489 Fire and emergency 341,651 325,585 Defense 87,332 75,392 Corporate and other 26,206 29,863 ---------- ---------- Consolidated $1,106,739 $1,024,329 ========== ========== Net sales by geographic region based on product shipment destination were as follows: Nine Months Ended June 30, 2003 2002 ---- ---- (In thousands) United States $1,230,843 $1,121,270 Other North America 6,943 6,174 Europe and Middle East 157,816 118,376 Other 22,294 20,810 ---------- ---------- Consolidated $1,417,896 $1,266,630 ========== ========== 19 14. SUBSEQUENT EVENTS - ---------------------- Following the close of business on July 17, 2003, the Company's Board of Directors declared a two-for-one split of both classes of Company common stock to be effected in the form of a 100 percent stock dividend payable August 13, 2003 to shareholders of record on August 6, 2003. Per share and weighted average share amounts have not been restated in the accompanying financial statements and related notes to reflect this split. As a part of its action to declare this stock dividend, the Rights under the Shareholder Rights Plan were proportionally adjusted, as were authorizations, outstanding options and option exercise prices under the 1990 Incentive Stock Plan of the Company. Also on July 17, 2003, the Company's Board of Directors declared, on a pre-split basis, dividends of $0.10 per share for Class A Common Stock and $0.115 per share for Common Stock payable August 13, 2003 to shareholders of record as of August 6, 2003. These dividends represent a 33-1/3 percent increase over prior quarter dividends. 15. CONDENSED CONSOLIDATING FINANCIAL INFORMATION - -------------------------------------------------- The following tables present condensed consolidating financial information for: (a) the Company; (b) on a combined basis, the guarantors of the senior subordinated notes, which include all wholly-owned subsidiaries of the Company ("Subsidiary Guarantors") other than the Geesink Norba Group, McNeilus Financial Services, Inc., Oshkosh/McNeilus Financial Services, Inc., and Oshkosh Equipment Finance, LLC, which are the only non-guarantor subsidiaries of the Company ("Non-Guarantor Subsidiaries"), and (c) on a combined basis, the Non-Guarantor Subsidiaries. Separate financial statements of the Subsidiary Guarantors are not presented because the Subsidiary Guarantors are jointly, severally and unconditionally liable under the guarantees, and the Company believes separate financial statements and other disclosures regarding the Subsidiary Guarantors are not material to investors. The Company is comprised of Wisconsin and Florida manufacturing operations and certain corporate management, information services and finance functions. Borrowings and related interest expense under the senior credit facility and the senior subordinated notes are charged to the Company. The Company has allocated a portion of this interest expense to certain Subsidiary Guarantors through formal lending arrangements. There are no management fee arrangements between the Company and its Non-Guarantor Subsidiaries. 20 OSHKOSH TRUCK CORPORATION Condensed Consolidating Statement of Income For the Three Months Ended June 30, 2003 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) Net sales $ 244,834 $ 257,402 $ 47,185 $ (11,238) $ 538,183 Cost of sales 212,270 216,707 38,861 (11,267) 456,571 --------- ----------- ------------- ------------- ------------ Gross income 32,564 40,695 8,324 29 81,612 Operating expenses: Selling, general and administrative 17,169 16,779 5,152 - 39,100 Amortization of purchased intangibles 1 1,505 115 - 1,621 --------- ----------- ------------- ------------- ------------ Total operating expenses 17,170 18,284 5,267 - 40,721 --------- ----------- ------------- ------------- ------------ Operating income 15,394 22,411 3,057 29 40,891 Other income (expense): Interest expense (5,510) (637) 16 2,858 (3,273) Interest income 143 3,021 - (2,858) 306 Miscellaneous, net 3,189 (3,595) (59) - (465) --------- ----------- ------------- ------------- ------------ (2,178) (1,211) (43) - (3,432) --------- ----------- ------------- ------------- ------------ Income before items noted below 13,216 21,200 3,014 29 37,459 Provision for income taxes 4,890 7,839 1,056 11 13,796 --------- ----------- ------------- ------------- ------------ 8,326 13,361 1,958 18 23,663 Equity in earnings of subsidiaries and unconsolidated partnership, net of income taxes 15,883 - 546 (15,883) 546 --------- ----------- ------------- ------------- ------------ Net income $ 24,209 $ 13,361 $ 2,504 $ (15,865) $ 24,209 ========= =========== ============= ============= ============
21 OSHKOSH TRUCK CORPORATION Condensed Consolidating Statement of Income For the Three Months Ended June 30, 2002 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) Net sales $ 210,339 $ 249,942 $ 39,081 $ (9,830) $ 489,532 Cost of sales 180,345 208,313 31,488 (9,874) 410,272 --------- ----------- ------------- ------------- ------------ Gross income 29,994 41,629 7,593 44 79,260 Operating expenses: Selling, general and administrative 17,315 16,973 5,104 - 39,392 Amortization of purchased intangibles - 1,441 65 - 1,506 --------- ----------- ------------- ------------- ------------ Total operating expenses 17,315 18,414 5,169 - 40,898 --------- ----------- ------------- ------------- ------------ Operating income 12,679 23,215 2,424 44 38,362 Other income (expense): Interest expense (5,910) (5,823) (51) 6,575 (5,209) Interest income 5,136 1,783 - (6,575) 344 Miscellaneous, net 4,091 (4,213) (52) - (174) --------- ----------- ------------- ------------- ------------ 3,317 (8,253) (103) - (5,039) --------- ----------- ------------- ------------- ------------ Income before items noted below 15,996 14,962 2,321 44 33,323 Provision for income taxes 5,919 5,529 812 16 12,276 --------- ----------- ------------- ------------- ------------ 10,077 9,433 1,509 28 21,047 Equity in earnings of subsidiaries and unconsolidated partnership, net of income taxes 11,497 550 527 (12,047) 527 --------- ----------- ------------- ------------- ------------ Net income $ 21,574 $ 9,983 $ 2,036 $ (12,019) $ 21,574 ========= =========== ============= ============= ============
22 OSHKOSH TRUCK CORPORATION Condensed Consolidating Statement of Income For the Nine Months Ended June 30, 2003 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) Net sales $ 623,837 $ 698,953 $ 128,679 $ (33,573) $ 1,417,896 Cost of sales 546,633 596,420 103,313 (33,513) 1,212,853 --------- ----------- ------------- ------------- ------------ Gross income 77,204 102,533 25,366 (60) 205,043 Operating expenses: Selling, general and administrative 49,769 48,632 16,172 - 114,573 Amortization of purchased intangibles 1 4,507 322 - 4,830 --------- ----------- ------------- ------------- ------------ Total operating expenses 49,770 53,139 16,494 - 119,403 --------- ----------- ------------- ------------- ------------ Operating income 27,434 49,394 8,872 (60) 85,640 Other income (expense): Interest expense (16,698) (2,016) (40) 8,575 (10,179) Interest income 328 9,047 - (8,575) 800 Miscellaneous, net 10,516 (10,196) (460) - (140) --------- ----------- ------------- ------------- ------------ (5,854) (3,165) (500) - (9,519) --------- ----------- ------------- ------------- ------------ Income before items noted below 21,580 46,229 8,372 (60) 76,121 Provision for income taxes 8,185 17,084 2,931 (22) 28,178 --------- ----------- ------------- ------------- ------------ 13,395 29,145 5,441 (38) 47,943 Equity in earnings of subsidiaries and unconsolidated partnership, net of income taxes 36,220 - 1,672 (36,220) 1,672 --------- ----------- ------------- ------------- ------------ Net income $ 49,615 $ 29,145 $ 7,113 $ (36,258) $ 49,615 ========= =========== ============= ============= ============
23 OSHKOSH TRUCK CORPORATION Condensed Consolidating Statement of Income For the Nine Months Ended June 30, 2002 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) Net sales $ 542,230 $ 643,944 $ 100,821 $ (20,365) $ 1,266,630 Cost of sales 475,626 543,752 78,726 (20,254) 1,077,850 --------- ----------- ------------- ------------- ------------ Gross income 66,604 100,192 22,095 (111) 188,780 Operating expenses: Selling, general and administrative 43,696 45,905 15,035 - 104,636 Amortization of purchased intangibles 1 4,228 192 - 4,421 --------- ----------- ------------- ------------- ------------ Total operating expenses 43,697 50,133 15,227 - 109,057 --------- ----------- ------------- ------------- ------------ Operating income 22,907 50,059 6,868 (111) 79,723 Other income (expense): Interest expense (19,217) (17,685) (71) 19,725 (17,248) Interest income 15,310 5,315 - (19,725) 900 Miscellaneous, net 10,344 (10,564) (153) - (373) --------- ----------- ------------- ------------- ------------ 6,437 (22,934) (224) - (16,721) --------- ----------- ------------- ------------- ------------ Income before items noted below 29,344 27,125 6,644 (111) 63,002 Provision for income taxes 9,987 10,014 2,326 (41) 22,286 --------- ----------- ------------- ------------- ------------ 19,357 17,111 4,318 (70) 40,716 Equity in earnings of subsidiaries and unconsolidated partnership, net of income taxes 22,992 1,698 1,633 (24,690) 1,633 --------- ----------- ------------- ------------- ------------ Net income $ 42,349 $ 18,809 $ 5,951 $ (24,760) $ 42,349 ========= =========== ============= ============= ============
24 OSHKOSH TRUCK CORPORATION Condensed Consolidating Balance Sheet June 30, 2003 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) ASSETS Current assets: Cash and cash equivalents $ 30,840 $ 1,598 $ 7,280 $ - $ 39,718 Receivables, net 65,627 65,193 43,382 (3,966) 170,236 Inventories 22,876 171,147 34,476 (180) 228,319 Prepaid expenses and other 30,021 11,365 1,433 - 42,819 --------- ----------- ------------- ------------- ------------ Total current assets 149,364 249,303 86,571 (4,146) 481,092 Investment in and advances to: Subsidiaries 609,331 4,549 - (613,880) - Unconsolidated partnership - - 23,434 - 23,434 Other long-term assets 14,730 6,417 - - 21,147 Net property, plant and equipment 32,647 90,774 20,284 - 143,705 Purchased intangible assets, net 21 91,597 9,335 - 100,953 Goodwill - 212,095 124,313 - 336,408 --------- ----------- ------------- ------------- ------------ Total assets $ 806,093 $ 654,735 $ 263,937 $ (618,026) $ 1,106,739 ========= =========== ============= ============= ============ LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable $ 46,555 $ 40,921 $ 22,465 $ (3,902) $ 106,039 Floor plan notes payable - 24,861 - - 24,861 Customer advances 75,485 83,890 454 - 159,829 Payroll-related obligations 13,056 13,563 6,262 - 32,881 Income taxes 18,571 - 2,949 - 21,520 Accrued warranty 14,362 10,590 3,049 - 28,001 Other current liabilities 23,979 27,755 4,847 (64) 56,517 Revolving credit facility and current maturities of long-term debt - 202 23 - 225 --------- ----------- ------------- ------------- ------------ Total current liabilities 192,008 201,782 40,049 (3,966) 429,873 Long-term debt 100,000 1,384 130 - 101,514 Deferred income taxes (13,012) 29,009 25,091 - 41,088 Other long-term liabilities 44,151 4,347 2,820 - 51,318 Commitments and contingencies Investments by and advances from (to) parent - 418,213 195,847 (614,060) - Shareholders' equity 482,946 - - - 482,946 --------- ----------- ------------- ------------- ------------ Total liabilities and shareholders' equity $ 806,093 $ 654,735 $ 263,937 $ (618,026) $ 1,106,739 ========= =========== ============= ============= ============
25 OSHKOSH TRUCK CORPORATION Condensed Consolidating Balance Sheet September 30, 2002
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) ASSETS Current assets: Cash and cash equivalents $ 32,571 $ 2,060 $ 5,408 $ - $ 40,039 Receivables, net 50,520 62,311 33,655 (3,777) 142,709 Inventories 31,060 150,042 29,884 (120) 210,866 Prepaid expenses and other 25,505 6,773 1,144 - 33,422 --------- ----------- ------------- ------------- ------------ Total current assets 139,656 221,186 70,091 (3,897) 427,036 Investment in and advances to: Subsidiaries 558,410 6,259 - (564,669) - Unconsolidated partnership - - 22,274 - 22,274 Other long-term assets 7,296 4,329 - - 11,625 Net property, plant and equipment 33,852 87,666 18,843 - 140,361 Purchased intangible assets, net 22 95,994 8,300 - 104,316 Goodwill - 212,095 106,622 - 318,717 --------- ----------- ------------- ------------- ------------ Total assets $ 739,236 $ 627,529 $ 226,130 $ (568,566) $ 1,024,329 ========= =========== ============= ============= ============ LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable $ 49,707 $ 48,432 $ 22,027 $ (3,744) $ 116,422 Floor plan notes payable - 23,801 - - 23,801 Customer advances 53,947 65,817 - - 119,764 Payroll-related obligations 13,518 14,848 6,108 - 34,474 Income taxes 8,064 - 533 - 8,597 Accrued warranty 11,755 9,148 3,112 - 24,015 Other current liabilities 18,148 25,457 4,182 (33) 47,754 Revolving credit facility and current maturities of long-term debt 18,000 226 19 - 18,245 --------- ----------- ------------- ------------- ------------ Total current liabilities 173,139 187,729 35,981 (3,777) 393,072 Long-term debt 130,000 1,586 127 - 131,713 Deferred income taxes (10,071) 27,445 21,929 - 39,303 Other long-term liabilities 36,408 11,654 2,419 - 50,481 Commitments and contingencies Investments by and advances from (to) parent - 399,115 165,674 (564,789) - Shareholders' equity 409,760 - - - 409,760 --------- ----------- ------------- ------------- ------------ Total liabilities and shareholders' equity $ 739,236 $ 627,529 $ 226,130 $ (568,566) $ 1,024,329 ========= =========== ============= ============= ============
26 OSHKOSH TRUCK CORPORATION Condensed Consolidating Statement of Cash Flows For the Nine Months Ended June 30, 2003 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) Operating activities: Net income $ 49,615 $ 29,145 $ 7,113 $ (36,258) $ 49,615 Non-cash adjustments (2,152) 8,918 3,277 - 10,043 Changes in operating assets and liabilities 34,094 (17,619) (5,995) 60 10,540 --------- ----------- ------------- ------------- ------------ Net cash provided from (used for) operating activities 81,557 20,444 4,395 (36,198) 70,198 Investing activities: Investments in and advances to subsidiaries (24,025) (8,337) (3,836) 36,198 - Additions to property, plant and equipment (3,311) (12,331) (1,111) - (16,753) Other (5,622) (12) 1,494 - (4,140) --------- ----------- ------------- ------------- ------------ Net cash provided from (used for) investing activities (32,958) (20,680) (3,453) 36,198 (20,893) Financing activities: Repayment of long-term debt (48,000) (226) (15) - (48,241) Dividends paid (4,395) - - - (4,395) Other 2,065 - - - 2,065 --------- ----------- ------------- ------------- ------------ Net cash used for financing activities (50,330) (226) (15) - (50,571) Effect of exchange rate changes on cash - - 945 - 945 --------- ----------- ------------- ------------- ------------ Increase (decrease) in cash and cash equivalents (1,731) (462) 1,872 - (321) Cash and cash equivalents at beginning of period 32,571 2,060 5,408 - 40,039 --------- ----------- ------------- ------------- ------------ Cash and cash equivalents at end of period $ 30,840 $ 1,598 $ 7,280 $ - $ 39,718 ========= =========== ============= ============= ============
27 OSHKOSH TRUCK CORPORATION Condensed Consolidating Statement of Cash Flows For the Nine Months Ended June 30, 2002 (Unaudited)
Subsidiary Non-Guarantor Company Guarantors Subsidiaries Eliminations Consolidated ------- ---------- ------------ ------------ ------------ (In thousands) Operating activities: Net income $ 42,349 $ 18,809 $ 5,951 $ (24,760) $ 42,349 Non-cash adjustments (2,445) 10,833 162 - 8,550 Changes in operating assets and liabilities 87,862 37,186 (888) 111 124,271 --------- ----------- ------------- ------------- ------------ Net cash provided from (used for) operating activities 127,766 66,828 5,225 (24,649) 175,170 Investing activities: Investments in and advances to subsidiaries 42,745 (64,959) (2,159) 24,373 - Additions to property, plant and equipment (1,631) (2,515) (2,737) - (6,883) Other (80) (419) 813 - 314 --------- ----------- ------------- ------------- ------------ Net cash provided from (used for) investing activities 41,034 (67,893) (4,083) 24,373 (6,569) Financing activities: Net repayments under revolving credit facility (65,200) - - - (65,200) Repayment of long-term debt (93,400) (416) (39) - (93,855) Dividends paid (4,326) - - - (4,326) Other 1,961 - - - 1,961 --------- ----------- ------------- ------------- ------------ Net cash used for financing activities (160,965) (416) (39) - (161,420) Effect of exchange rate changes on cash - - 273 276 549 --------- ----------- ------------- ------------- ------------ Increase (decrease) in cash and cash equivalents 7,835 (1,481) 1,376 - 7,730 Cash and cash equivalents at beginning of period 4,726 3,394 3,192 - 11,312 --------- ----------- ------------- ------------- ------------ Cash and cash equivalents at end of period $ 12,561 $ 1,913 $ 4,568 $ - $ 19,042 ========= =========== ============= ============= ============
28 Item 2. Oshkosh Truck Corporation Management's Discussion and Analysis of Consolidated Financial Condition and Results of Operations FORWARD-LOOKING STATEMENTS This Management's Discussion and Analysis of Consolidated Financial Condition and Results of Operations and other sections of this Form 10-Q contain statements that Oshkosh Truck Corporation (the "Company" or "Oshkosh") believes to be "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact included in this report, including, without limitation, statements regarding the Company's future financial position, business strategy, targets, projected sales, costs, earnings, capital spending and debt levels, and plans and objectives of management for future operations, including those under the captions "Fiscal 2003 Outlook" and "Fiscal 2004 Outlook" are forward-looking statements. When used in this Form 10-Q, words such as "may," "will," "expect," "intend," "estimates," "anticipate," "believe," "should" or "plans" or the negative thereof or variations thereon or similar terminology are generally intended to identify forward-looking statements. These forward-looking statements are not guarantees of future performance and are subject to risks, uncertainties, assumptions and other factors, some of which are beyond the Company's control, that could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These factors include, the cyclical nature of the Company's commercial and fire and emergency markets, the outcome of defense truck procurement competitions, risks related to reductions in government expenditures, the uncertainty of government contracts, the challenges of identifying acquisition candidates and integrating acquired businesses, disruptions in the supply of parts or components from sole source suppliers and subcontractors, competition and risks associated with international operations and sales, including foreign currency fluctuations. Additional information concerning factors that could cause actual results to differ materially from those in the forward-looking statements is contained from time to time in the Company's SEC filings, including, but not limited to, the Company's Current Report on Form 8-K filed with the SEC on July 24, 2003. All forward-looking statements, including those under the captions "Fiscal 2003 Outlook" and "Fiscal 2004 Outlook," speak only as of the date the Company files this Quarterly Report on Form 10-Q with the SEC. The Company has adopted a policy that if the Company makes a determination that it expects the Company's earnings per share for future periods for which projections are contained in this Quarterly Report on Form 10-Q to be lower than those projections, then the Company will publicly disseminate that fact. The Company's policy also provides that if the Company makes a determination that it expects earnings per share for future periods to be at or above the projections contained in this Quarterly Report on Form 10-Q, then the Company does not intend to publicly disseminate that fact. Except as set forth above, the Company 29 assumes no obligation, and disclaims any obligation, to update information contained in this Quarterly Report on Form 10-Q. Investors should be aware that the Company may not update such information until the Company's next quarterly conference call, if at all. General The major products manufactured and marketed by each of the Company's business segments are as follows: Commercial - concrete mixer systems, refuse truck bodies, mobile and stationary refuse compactors and waste transfer stations, portable concrete batch plants and truck components sold to ready-mix companies and commercial and municipal waste haulers in the U.S., Europe and other international markets. Fire and emergency - commercial and custom fire trucks, aircraft rescue and firefighting trucks, snow removal trucks, ambulances and other emergency vehicles primarily sold to fire departments, airports and other governmental units in the U.S. and abroad. Defense - heavy- and medium-payload tactical trucks and supply parts sold to the U.S. military and to other militaries around the world. Stock Dividend Following the close of business on July 17, 2003, the Company's Board of Directors declared a two-for-one stock split of both classes of Company common stock to be effected in the form of a 100 percent stock dividend payable August 13, 2003 to shareholders of record on August 6, 2003. Unless specifically described otherwise, per share amounts presented in Management's Discussion and Analysis of Consolidated Financial Condition and Results of Operations have not been restated to reflect this stock split. Results of Operations Analysis of Consolidated Net Sales The following table presents net sales by business segment (in thousands):
Third Quarter First Nine Months Fiscal Fiscal 2003 2002 2003 2002 ---- ---- ---- ---- Net sales to unaffiliated customers: Commercial $213,585 $204,535 $ 562,734 $ 503,942 Fire and emergency 148,345 123,956 402,887 339,504 Defense 178,779 162,774 457,939 426,475 Intersegment eliminations (2,526) (1,733) (5,664) (3,291) -------- -------- ---------- ---------- Consolidated $538,183 $489,532 $1,417,896 $1,266,630 ======== ======== ========== ==========
30 Third Quarter Fiscal 2003 Compared to 2002 Consolidated net sales increased 9.9% to $538.2 million for the third quarter of fiscal 2003 compared to the third quarter of fiscal 2002. Net sales increases were recorded in all segments. Commercial segment net sales increased 4.4% to $213.6 million for the third quarter of fiscal 2003 compared to the third quarter of fiscal 2002. Concrete placement product sales were up 5.0% in 2003 compared to 2002, largely as a result of increased front-discharge concrete mixer unit sales volume. Rear-discharge concrete mixer sales unit volume declined during the quarter; however, sales value remained flat due to higher "package" sales of rear-discharge concrete mixers and purchased chassis. Package sales include both the truck body and a purchased chassis. Refuse product sales were up 3.6% compared to 2002. U.S. refuse truck body sales declined 9.0% for the quarter, primarily due to lower unit sales, especially to large, U.S. commercial waste-haulers. The decline in sales value was partially offset by higher "package" sales versus "body-only" sales. Although unit sales declined, European refuse product sales were up 20.7% compared to 2002, generally as a result of increased "package" sales, which the Company is now emphasizing, and because of favorable currency translation adjustments as a result of the increased strength of the euro compared to the U.S. dollar. Fire and emergency segment net sales increased 19.7% to $148.3 million for the third quarter of fiscal 2003 compared to the third quarter of fiscal 2002. All business units in this segment realized increased sales volume for the quarter compared to the prior year, due to strong order rates in fiscal 2002. Defense segment net sales increased 9.8% to $178.8 million for the third quarter of fiscal 2003 compared to the third quarter of fiscal 2002 due primarily to heavy truck sales under a contract with the U.K. Ministry of Defence and to increased parts sales. First Nine Months of Fiscal 2003 Compared to 2002 Consolidated net sales increased 11.9% to $1,417.9 million for the nine months ended June 30, 2003 compared to the nine months ended June 30, 2002. Commercial segment net sales increased 11.7% to $562.7 million for the nine months ended June 30, 2003 compared to the same period in the prior year. Concrete placement sales were up 18.0%, primarily due to increased front-discharge mixer sales and a higher proportion of rear-discharge mixer "package" sales compared to the prior year. Domestic refuse sales were 10.6% lower due to lower unit sales, especially to large, U.S. commercial waste haulers, offset in part by a higher proportion of "package" sales compared to the prior year. European refuse sales 31 increased 27.6% due to increased "package" sales and favorable foreign currency translation gains that offset unit sales declines. Fire and emergency segment net sales increased 18.7% to $402.9 million for the nine months ended June 30, 2003 compared to the first nine months of fiscal 2002. Sales increases were largely due to increased unit volumes and an improved product sales mix of domestic fire apparatus at the Company's Pierce Manufacturing Inc. ("Pierce") subsidiary, as well as increased volume and a favorable product sales mix in airport products. Defense segment net sales increased 7.4% to $457.9 million for the nine months ended June 30, 2003 compared to the same period in the prior year due to increased sales under the Company's Family of Heavy Tactical Vehicle ("FHTV") contract and higher parts sales. Analysis of Consolidated Operating Income The following table presents operating income by business segment (in thousands):
Third Quarter First Nine Months Fiscal Fiscal 2003 2002 2003 2002 ---- ---- ---- ---- Operating income (expense): Commercial $15,011 $17,747 $34,047 $37,204 Fire and emergency 16,113 14,461 40,453 33,824 Defense 16,913 14,965 33,239 28,094 Corporate and other (7,146) (8,811) (22,099) (19,399) ------- ------- ------- ------- Consolidated operating income $40,891 $38,362 $85,640 $79,723 ======= ======= ======= =======
Third Quarter Fiscal 2003 Compared to 2002 Consolidated operating income increased 6.6% to $40.9 million, or 7.6% of sales, in the third quarter of fiscal 2003 compared to $38.4 million, or 7.8% of sales, in the third quarter of fiscal 2002. Results in the third quarter of fiscal 2002 benefited from a cumulative catch-up adjustment to margins on the Company's Medium Tactical Vehicle Replacement ("MTVR") contract as described below. Commercial segment operating income decreased 15.4% to $15.0 million, or 7.0% of sales, in the quarter compared to $17.7 million, or 8.7% of sales, in the prior year quarter. Operating income margins fell in the third quarter of fiscal 2003 compared to the prior year quarter due to lower margins on "package" sales of concrete mixers and refuse bodies. The Company earns a lower overall operating income margin on "package" sales which include purchased commercial chassis. Fire and emergency segment operating income increased 11.4% to $16.1 million, or 10.9% of sales, in the quarter compared to $14.5 million, or 11.7% of sales, in the prior year quarter. An increase in lower-margin 32 international fire apparatus sales in the current year quarter resulted in lower operating income margins compared with the prior year quarter. Defense segment operating income increased 13.0% to $16.9 million, or 9.5% of sales, in the quarter compared to $15.0 million, or 9.2% of sales, in the prior year quarter. Operating income increased as a result of higher parts sales, higher international truck sales and lower bid and proposal spending. The Company had recorded a cumulative catch-up adjustment to increase the life-to-date margins recognized on its MTVR contract to 4.3% in the third quarter of fiscal 2002, contributing approximately $4.0 million of operating income in the third quarter of fiscal 2002 that related to sales from prior quarters. Corporate operating expenses and inter-segment profit elimination decreased $1.7 million to $7.1 million in the third quarter of fiscal 2003 compared to the third quarter of fiscal 2002. Prior year results included significant expenses related to acquisition investigations and higher variable compensation. Current quarter results include costs and expenses to implement requirements of the Sarbanes-Oxley Act and expenses related to the Company's previously reported plan to increase investments in people and services. Consolidated operating expenses remained flat at $40.7 million, or 7.6% of sales, in the third quarter of fiscal 2003 compared to $40.9 million, or 8.4% of sales, in the third quarter of fiscal 2002. Decreased corporate operating expenses, lower bid and proposal costs and increased package sales versus "body-only" sales contributed to the lower spending as a percent of sales in the third quarter of fiscal 2003. First Nine Months of Fiscal 2003 Compared to 2002 Consolidated operating income increased 7.4% to $85.6 million, or 6.0% of sales, in the first nine months of fiscal 2003, compared to $79.7 million, or 6.3% of sales, in the first nine months of fiscal 2002. Commercial segment operating income decreased 8.5% to $34.0 million, or 6.1% of sales, in the first nine months compared to $37.2 million, or 7.4% of sales, in the prior year period. Operating income margins were generally lower due to a higher percentage of "package" sales versus body-only sales in the current year compared to the previous year. Results for the first nine months of fiscal 2003 benefited from a $0.5 million gain on the sale of certain operating equipment. Fire and emergency segment operating income increased 19.6% to $40.5 million, or 10.0% of sales, in the first nine months of fiscal 2003 compared to $33.8 million, or 10.0% of sales, in the prior year period. Increased sales volume and a strong product mix in the current year were partially offset by an increase in lower-margin international sales in the current year resulting in flat operating income margins compared to the prior year. 33 Defense segment operating income increased 18.3% to $33.2 million, or 7.3% of sales, compared to $28.1 million, or 6.6% of sales, in the prior year period. The increase in operating income margins for the first nine months of fiscal 2003 resulted from higher sales of FHTV trucks, international defense trucks and defense parts, and lower bid and proposal spending compared to the same period in fiscal 2002. Corporate operating expenses and inter-segment profit elimination increased $2.7 million to $22.1 million for the nine months ended June 30, 2003 compared to the same period in the prior year. Increases in variable compensation, costs to implement the requirements of the Sarbanes-Oxley Act and investments in people and services contributed to the increase. Consolidated operating expenses increased 9.5% during the period to $119.4 million, or 8.4% of sales, compared to $109.1 million, or 8.6% of sales, in the prior year period. Higher "package" sales in the commercial segment contributed to the lower spending as a percent of sales in the nine months ended June 30, 2003. Analysis of Non-Operating Income Statement Items Third Quarter Fiscal 2003 Compared to 2002 Net interest expense decreased $1.9 million to $3.0 million in the third quarter of fiscal 2003 compared to the third quarter of fiscal 2002, largely as a result of debt reduction in the fourth quarter of fiscal 2002 resulting from performance-based payments on the MTVR and FHTV contracts and cash flow from operations and, to a lesser extent, due to lower interest rates. The effective income tax rate for both the third quarter of fiscal 2003 and the third quarter of fiscal 2002 was 36.8%. Equity in earnings of an unconsolidated partnership of $0.5 million in the third quarter of fiscal 2003 and $0.5 million in the third quarter of fiscal 2002 represents the Company's equity interest in a lease financing partnership. First Nine Months of Fiscal 2003 Compared to 2002 Net interest expense decreased $7.0 million to $9.4 million in the first nine months of fiscal 2003 compared to fiscal 2002, largely as a result of debt reduction in the fourth quarter of fiscal 2002 related to performance-based payments on the MTVR and FHTV contracts and cash flow from operations and, to a lesser extent, due to lower interest rates. The effective income tax rate for the first nine months of fiscal 2003 was 37.0% compared to 35.4% for the comparable period in the prior year. In December 2001, the Company concluded an audit settlement of a research and development tax credit claim resulting in a $0.9 million reduction in 34 income tax expense in the first nine months of fiscal 2002, which reduced the Company's effective income tax rate by 1.4 percentage points. Equity in earnings of an unconsolidated partnership of $1.7 million in the first nine months of fiscal 2003 and $1.6 million in the first nine months of fiscal 2002 represent the Company's equity interest in a lease financing partnership. Financial Condition First Nine Months of Fiscal 2003 During the first nine months of fiscal 2003, cash decreased by $0.3 million to $39.7 million at June 30, 2003. The reduction in cash during the period was largely due to repayments of long-term debt of $48.2 million, capital expenditures of $16.8 million, increases in other long-term assets of $7.9 million, and dividends of $4.4 million, substantially offset by cash flow from operating activities of $70.2 million and proceeds from sale of assets of $3.8 million. The increase in other long-term assets arose principally from a $12.0 million contribution to the Company's defined benefit pension plans during the second quarter of fiscal 2003. In the first nine months of fiscal 2003, net cash provided from operating activities of $70.2 million was significantly lower than the $175.2 million of net cash provided from operating activities in the first nine months of fiscal 2002. This variance between periods was primarily due to cash flows associated with changes in operating assets and liabilities. The following table presents cash flows associated with changes in operating assets and liabilities (in thousands). Nine Months Ended June 30, 2003 2002 ---- ---- Receivables, net $ (21,674) $ 59,886 Inventories (12,517) 25,755 Accounts payable (13,830) 2,205 Floor plan notes payable 1,060 2,958 Customer advances 40,036 36,633 Income taxes 14,709 (4,934) Other 2,756 1,768 --------- -------- Source of cash $ 10,540 $124,271 ========= ======== During the first nine months of fiscal 2003, the Company was building inventories in anticipation of an expected increase in sales in the fourth quarter of fiscal 2003. During the first nine months of fiscal 2002, the Company was liquidating significant receivables from a large commercial waste-hauler related to a higher concentration of sales in the previous quarter. In addition, during the first nine months of fiscal 2002 the 35 Company was liquidating significant receivables and inventories associated with a large foreign military sale. The Company's debt-to-total capital ratio at June 30, 2003 was 17.4% compared to 26.8% at September 30, 2002. First Nine Months of Fiscal 2002 During the first nine months of fiscal 2002, cash increased by $7.7 million to $19.0 million at June 30, 2002. Cash provided from operating activities of $175.2 million was used to fund capital expenditures of $6.9 million, pay dividends of $4.3 million and reduce short- and long-term debt by $159.1 million. In the first nine months ending June 30, 2002, net cash provided from operating activities of $175.2 million was significantly impacted by cash flows associated with changes in operating assets and liabilities. In fiscal 2002, the Company had initiated planned actions to reduce cash invested in working capital, principally receivables and inventories, in light of the recession in the U.S. economy. Cash was provided from increases in customer advances as a higher percentage of customers took advantage of prepayment programs. Income taxes payable decreased in the first nine months of fiscal 2002 due to increases in income tax payments made during the period. Income tax payments were $35.9 million in the first nine months of fiscal 2002 and were impacted by a delay in estimated tax payments from the fourth quarter of fiscal 2001 to the first quarter of 2002 resulting from a one-time benefit from U.S. tax legislation. Liquidity and Capital Resources The Company had $148.4 million of unused availability under the terms of its Revolving Credit Facility as of June 30, 2003. The Company's primary cash requirements include working capital, interest payments on indebtedness, capital expenditures, dividends, and, potentially, future acquisitions. The primary sources of cash are expected to be cash flow from operations and borrowings under the Company's Revolving Credit Facility. The Company's cash flow from operations has fluctuated, and will likely continue to fluctuate, significantly from quarter to quarter due to changes in working capital requirements arising principally from seasonal fluctuations in sales, the start-up or conclusion of large defense contracts and the timing of receipt of individually large performance-based payments from the U.S. Department of Defense ("DoD"). In June 2003, the Company prepaid the remaining balance of $36.0 million then outstanding under its Term Loan A that was scheduled to mature in January 2006. 36 The Company's Revolving Credit Facility and senior subordinated notes contain various restrictions and covenants, including (1) limits on payments of dividends and repurchases of the Company's stock; (2) requirements that the Company maintain certain financial ratios at prescribed levels; (3) restrictions on the ability of the Company to make additional borrowings, or to consolidate, merge or otherwise fundamentally change the ownership of the Company; and (4) limitations on investments, dispositions of assets and guarantees of indebtedness. These restrictions and covenants could limit the Company's ability to respond to market conditions, to provide for unanticipated capital investments, to raise additional debt or equity capital, to pay dividends or to take advantage of business opportunities, including future acquisitions. Interest rates on borrowings under the Company's Revolving Credit Facility are variable and are equal to the "Base Rate" (which is equal to the higher of a bank's reference rate and the federal funds rate plus 0.50%) or the "IBOR Rate" (which is the bank's inter-bank offered rate for U.S. dollars in off-shore markets) plus a margin of 1.00% for IBOR Rate loans under the Company's Revolving Credit Facility as of June 30, 2003. The margin is subject to adjustment, up or down, based on whether certain financial criteria are met. The Company presently has no plans to enter into interest rate swap arrangements to limit exposure to future increases in interest rates. Based upon current and anticipated future operations, the Company believes that capital resources will be adequate to meet future working capital, debt service and other capital requirements for fiscal 2003. See "Fiscal 2003 Outlook." Capital resource requirements may change, however, because the Company maintains an active acquisitions strategy and the capital requirements of this strategy cannot be reasonably estimated. In addition, the Company could face significant working capital requirements in the event of an award of major new business arising from current truck procurement competitions for new defense contracts in the U.K. Contractual Obligations and Commercial Commitments The Company's contractual obligations and commercial commitments disclosures in its Annual Report on Form 10-K for the year ended September 30, 2002 have not materially changed since that report was filed, except for the Wheeled Tanker cash flow hedging program discussed below, the addition of operating leases in connection with a manufacturing facility and in connection with certain equipment with combined total minimum rentals of $13.1 million; with payments due of $0.3 million for the remainder of fiscal 2003, $1.2 million annually in fiscal 2004 through fiscal 2007 and $8.0 million thereafter. The Company's export sales have historically been denominated in the Company's functional currency, the U.S. dollar. In March 2003, the Company entered into a multi-year contract to provide Wheeled Tanker systems to the U.K. Ministry of Defence. This contract, which is included in the Company's backlog at June 30, 2003 and which calls for deliveries 37 in fiscal 2005 through fiscal 2007, is denominated in British Pounds Sterling. Additionally, in connection with this Wheeled Tanker contract, the Company has entered into requirements subcontracts with various third parties. Certain of these subcontracts call for payments in euros. The Company has hedged a significant portion of the forecasted cash flows related to this contract by entering into forward foreign exchange contracts. Any portion of these contractual cash flows that remain unhedged will subject the Company to foreign currency transaction risk and related financial volatility. See Note 8 to the Condensed Consolidated Financial Statements for details regarding the Company's use of forward foreign exchange contracts in connection with the Wheeled Tanker contract and other forecasted purchases and sales denominated in foreign currency. Application of Critical Accounting Policies The Company's application of critical accounting policies disclosures in its Annual Report on Form 10-K for the year ended September 30, 2002 have not materially changed since that report was filed. Critical Accounting Estimates The Company's disclosures of critical accounting estimates in its Annual Report on Form 10-K for the year ended September 30, 2002 have not materially changed since that report was filed. New Accounting Standards Refer to Note 2 to the Condensed Consolidated Financial Statements for a discussion of the impact on the Company's financial statements of new accounting standards. Customers and Backlog Sales to the DoD comprised approximately 34% of the Company's sales in the first nine months of fiscal 2003. No other single customer accounted for more than 10% of the Company's net sales for this period. A substantial majority of the Company's net sales are derived from customer orders prior to commencing production. The Company's backlog at June 30, 2003 increased 13.6% to $1,209.8 million compared to $1,065.1 million at June 30, 2002. Commercial segment backlog decreased 18.3% to $131.1 million at June 30, 2003 compared to June 30, 2002. Backlog for front-discharge concrete mixers was down 59.5% while backlog for rear-discharge concrete mixers was down 39.8%. Backlog for refuse packers was up 49.2% domestically and up 9.0% in Europe. Concrete mixer backlogs decreased due principally to high backlogs at June 30, 2002 due to a pre-buy by customers in advance of engine emissions standards changes effective October 1, 2002, and also due to lower orders in fiscal 2003. Although higher, the domestic refuse backlog remained relatively low due to weak orders from large, U.S. commercial waste-haulers. European refuse backlog in U.S. dollars increased largely as a result of a 38 stronger euro compared to the U.S. dollar and a higher proportion of package sales, as unit backlogs declined due to weak order rates. Fire and emergency segment backlog decreased 8.4% to $266.3 million at June 30, 2003 compared to June 30, 2002, continuing a trend of lower industry orders, due to state and municipal budget constraints. The defense segment backlog increased 32.3% to $812.4 million at June 30, 2003 compared to June 30, 2002, principally due to the award of a U. K. Wheeled Tanker contract with shipments commencing in fiscal 2005 and due to funding received under the Company's FHTV and MTVR contracts. Approximately 64.9% of the June 30, 2003 backlog is not expected to be filled in fiscal 2003. Reported backlog excludes purchase options and announced orders for which definitive contracts have not been executed. Additionally, backlog excludes unfunded portions of the DoD FHTV and MTVR contracts. Backlog information and comparisons thereof as of different dates may not be accurate indicators of future sales or the ratio of the Company's future sales to the DoD versus its sales to other customers. Fiscal 2003 Outlook The Company estimates that consolidated net sales will grow approximately 9.0% in fiscal 2003 to $1.9 billion. The Company expects consolidated operating income to increase 8.0% to approximately $120.0 million in fiscal 2003, or approximately 6.3% of sales. The Company expects earnings per share from continuing operations assuming dilution to increase 15.9% to $4.00 per share in fiscal 2003. No acquisitions are assumed in any fiscal 2003 estimates. The Company estimates that commercial segment sales will increase 8.1% in fiscal 2003 to $733.0 million. The Company expects a 6.7% increase in U.S. concrete placement sales in fiscal 2003, attributable to higher "package" sales. The Company expects its U.S. refuse sales to be down 4.6% in fiscal 2003, reflecting an estimated 10.0% decline in industry volume offset in part by a higher mix of "package" sales and higher prices. The Company estimates that the Geesink Norba Group sales will increase approximately 29.2% in fiscal 2003 based on an increase in "package" sales and foreign currency translation gains resulting from a stronger euro, offset in part by a weak European economy. The Company estimates that commercial segment operating income will decrease approximately 4.6% in fiscal 2003 to $45.0 million. The Company expects concrete placement operating income to decline 7.1% reflecting weak customer orders and planned development spending and start-up costs associated with the Revolution(TM) composite concrete mixer drum. The Company plans to sell less than one hundred Revolution drums in fiscal 2003, largely utilizing the production facilities of the Company's partner in Australia. Freight costs from Australia will limit any profit opportunity from drums produced in Australia. The Company plans to have a U.S. production facility for the Revolution drum operational by the end of fiscal 2003, and to reach high rate of production for sales in fiscal 2004. In fiscal 2005 and fiscal 2006, the Company plans to acquire the 39 rights to this technology for Europe, Asia, Australia and perhaps Africa/Middle East. The Company expects domestic refuse operating income to decrease about 19.5% in fiscal 2003 due to lower unit volumes resulting from weak market conditions. Internationally, the Company expects that the strong euro and benefits from the cost reduction efforts in fiscal 2002 at the Geesink Norba Group will more than offset weaker end markets throughout Europe, resulting in a 30.0% improvement in operating income in fiscal 2003. The Company expects that fire and emergency segment sales will be up 12.4% to $535.0 million in fiscal 2003. During the first quarter of fiscal 2003, the Company believes that municipal orders for fire apparatus began to slow, and expects this weakening to impact fiscal 2004 results. The Company estimates fire and emergency operating income to increase 8.2% to approximately $53.0 million in fiscal 2003, largely due to strong orders received in fiscal 2002. The Company estimates defense segment sales to increase 7.6% to $640.0 million in fiscal 2003. The Company estimates defense segment operating income will increase 27.7% to approximately $52.0 million in fiscal 2003, up $4.5 million from previous estimates. This estimate assumes that MTVR contract margins remain at 4.3% in fiscal 2003. The Company continues to target margins of 6.0% to 6.5% over the contract life. The Company reviews its estimated costs to complete the MTVR long-term production contract periodically, or as events change, based on factors such as the cost performance achieved to date and the durability of fielded trucks. In June 2002, the Company negotiated a modification of the MTVR contract to replace a bare chassis with requirements for vehicles with a dump or a wrecker variant. The wrecker variants are complex vehicles that will undergo significant testing. The U.S. Marine Corps has until January 2004, if at all, to fund the wrecker requirements under the contract. The Company will account for funding of the wrecker variant by recognizing such wrecker sales as a separate contract from the base MTVR contract. The practical effect of this change is that the Company will not recognize a cumulative catch-up adjustment to earnings when such wreckers are funded, but rather it will record higher earnings as each wrecker is shipped in fiscal 2004 and 2005. The Company expects to ship more than one-half of the anticipated wreckers in fiscal 2005. How the wreckers perform in testing, the timing and number of wreckers actually funded by the U.S. Marine Corps under the separate contract and the cost performance on those trucks will be important factors in the Company's ability to achieve its targeted MTVR margins of 6.0% to 6.5% over the lives of the base contract and the wrecker variant contract. The Company expects corporate expenses to increase from $25.8 million in fiscal 2002 to $30.0 million in fiscal 2003. The increase reflects investments planned to build the Company's management team, higher variable incentive compensation costs and higher costs to implement the requirements of the Sarbanes-Oxley Act. 40 The Company expects net interest expense to approximate $13.0 million in fiscal 2003. The Company projects debt to remain at $101.7 million at September 30, 2003. This debt level reflects increased working capital requirements associated with the start-up of the U.K. Tank Transporter and U. K. Wheeled Tanker contracts. The Company estimates capital spending at no more than $30.0 million in fiscal 2003, including amounts for equipment and improvements in conjunction with a leased U.S. facility to manufacture the Revolution(TM) composite concrete mixer drum. Fiscal 2004 Outlook The Company estimates that fiscal 2004 consolidated net sales will approximate $1.87 billion, down 1.6% from estimated fiscal 2003 net sales. If the U.S. Marine Corps fund the wrecker under the MTVR contract, then the Company's consolidated sales estimate would increase by $30.0 million to be about flat compared with fiscal 2003 estimated sales. No acquisitions are assumed in any of the Company's fiscal 2004 estimates. Also, all comparisons are to fiscal 2003 estimates. The Company estimates that commercial sales will increase about 9.1% to approximately $800.0 million in fiscal 2004. The Company is projecting an increase in concrete placement sales of 12.3% in fiscal 2004, reflecting a modest economic recovery and the launch of the Revolution(TM) composite mixer drum. The Company expects to sell 1,000 Revolution(TM) composite concrete mixer drums in fiscal 2004. The Company is projecting domestic refuse sales to increase 10.5% in fiscal 2004, largely due to projected volume increases with the largest U.S. waste haulers, with municipal refuse spending remaining soft. The Company expects that Geesink Norba Group refuse product sales will grow approximately 0.8% in fiscal 2004 with no recovery in the European market and an expected weakening of the euro to the U.S. dollar. The Company expects that fire and emergency sales will be down about 2.8% to approximately $520.0 million. The Company expects Pierce sales to be down 5.0% based on the current backlog of open orders, which extends into February 2004. The Company believes that industry fire apparatus market volumes may be down 10.0% in fiscal 2004 due to municipal and state budget constraints. The Company expects strong snow removal and aircraft rescue and firefighting vehicle sales to offset some of the weakness in fire apparatus sales. The Company is projecting defense sales to decrease 12.5% to $560.0 million. The Company believes this estimate could increase by $30.0 million if the U.S. Marine Corps funds the MTVR wrecker requirement. Before consideration of any potential MTVR wrecker call-up, the Company expects MTVR sales to decline about $126.0 million in fiscal 2004, consistent with contract requirements. The Company estimates that some of that decrease will be offset by higher estimated international sales and higher sales under the Company's FHTV contract. 41 By quarter, the Company estimates that fiscal 2004 sales will approximate $423.0 million in quarter one, $473.0 million in quarter two, $517.0 million in quarter three and $457.0 million in quarter four. The Company is projecting consolidated operating income to be up about 10.0% to approximately $132.0 million in fiscal 2004. In the commercial segment, the Company projects operating income to increase 24.4% to $56.0 million. In this segment, the Company is projecting concrete placement operating income to be up 21.0% in fiscal 2004 based on a modest economic recovery and expected sales of its new Revolution(TM) composite mixer drum in fiscal 2004. The Company expects domestic refuse results to be up 41.0% in fiscal 2004, off a low base in fiscal 2003, due to higher estimated volume with the largest U.S. waste-haulers in spite of lower estimated industry volumes and cost reduction plans in place. The Company expects European refuse product operating results to be up 10.5% as a result of the restructuring of that business in fiscal 2002 and 2003. The Company is projecting fire and emergency segment operating income to decrease 4.7% to $50.5 million in fiscal 2004, consistent with the estimated sales decrease in this segment. The Company is projecting defense operating income to increase 3.8% to $54.0 million in fiscal 2004. This estimate assumes lower bid and proposal spending, substantially lower sales of relatively lower-margin MTVR trucks, but increased sales of relatively higher-margin FHTV and international defense trucks. This estimate also assumes the MTVR contract margins remain at 4.3%. The Company continues to target 6.0% to 6.5% margins over the contract life. A one percentage point increase in MTVR margins in fiscal 2004 would amount to $9.0 million in operating income, or $0.32 per share. Quarterly, the Company monitors manufacturing cost performance and the durability of fielded trucks, among other factors, and adjusts margins on the contract based on revised estimates to complete this contract. Another important factor impacting defense segment earnings in fiscal 2004 will be the status of a U.S. Marine Corps contract modification to the base MTVR contract to fund wreckers on an MTVR chassis. If funded, the Company believes the modification would add approximately $30.0 million in sales at higher margins than earned under the base MTVR contract, as variant development costs are amortized over the base MTVR contract. The Company expects corporate expenses to approximate $28.5 million in fiscal 2004, down from $30.0 million estimated for fiscal 2003. This decrease reflects lower estimated costs to implement requirements of the Sarbanes-Oxley Act. The Company is projecting net interest costs to increase $1.0 million in fiscal 2004 to $14.0 million. The Company expects debt to be lower on average in fiscal 2004, but has assumed that interest rates will rise in fiscal 2004. The Company estimates that in fiscal 2004 its effective tax rate will approximate 36.8% and that equity in earnings of its leasing unconsolidated partnership will approximate $2.7 million after taxes. 42 These estimates result in the Company's estimate of fiscal 2004 net income of $77.3 million. By quarter, the Company expects that net income will approximate $13.4 million in quarter one, $18.1 million in quarter two, $25.1 million in quarter three and $20.7 million in quarter four. Based on an estimated 17.75 million average diluted shares outstanding for the year, these net income estimates result in earnings per share estimates of $0.76 in quarter one, $1.02 in quarter two, $1.41 in quarter three, and $1.16 in quarter four. These quarterly earnings estimates reflect substantially higher earnings per share in the first half of fiscal 2004 and relatively flat earnings per share in the second half of fiscal 2004, in comparison to comparable periods in fiscal 2003. In the first half of fiscal 2004, the Company expects a strong mix of FHTV contract and international defense truck sales to contribute to higher earnings. In the second half of fiscal 2004, quarterly earnings comparisons are tougher, and MTVR sales will be lower. If the U.S. Marine Corps funds the wrecker modification, or if there is a stronger than expected economic recovery, that could contribute to earnings growth in the second half of fiscal 2004. Beginning with the quarter ended September 30, 2003, the Company will be reporting earnings per share after giving effect to the two-for-one stock split effective August 6, 2003. The Company's actual and projected earnings per share, after giving effect to the stock split, for fiscal 2003 and fiscal 2004 are as follows: Fiscal Fiscal 2003 2004 ---- ---- First quarter $0.32 $0.38 P Second quarter 0.40 0.51 P Third quarter 0.69 0.70 P Fourth quarter 0.58 P 0.58 P Fiscal year 2.00 P 2.18 P P = Projected Assuming no acquisitions, the Company estimates that debt will remain flat at September 30, 2004 compared to estimated September 30, 2003 levels, but cash will fluctuate with seasonal working capital demands. The Company intends to hold excess cash in furtherance of its acquisition strategy. The Company anticipates capital spending to approximate $30.0 million in fiscal 2004, much of which the Company expects will support the continued worldwide rollout of the Revolution(TM) composite mixer drum. Looking forward to fiscal 2005, the Company expects declining defense sales as the MTVR contract concludes. By then, the Company hopes that other defense truck sales opportunities, an economic recovery, the rollout of the Revolution(TM) composite mixer drum and, potentially, acquisitions would offset MTVR sales declines and foster earnings growth. 43 The expectations set forth in "Fiscal 2003 Outlook" and "Fiscal 2004 Outlook" are forward-looking statements and are based in part on certain assumptions made by the Company, some of which are referred to in, or as part of, the forward-looking statements. These assumptions include, without limitation, a modest economic recovery in the U.S. and no economic recovery in Europe; the sale of 1,000 Revolution(TM) composite mixer drums in the U.S. in fiscal 2004 at favorable pricing and costs; the Company's estimates for concrete placement activity, housing starts and mortgage rates; the Company's expectations as to timing of receipt of sales orders and payments and execution and funding of defense contracts; the Company's ability to achieve cost reductions; the anticipated level of margins associated with the MTVR contract and a related MTVR variant contract; the anticipated level of sales associated with defense parts, international defense truck contracts, and the FHTV contract; the Company's planned spending on product development and bid and proposal activities with respect to defense truck procurement competitions and the outcome of such competitions; the expected level of commercial "package" body and purchased chassis sales compared to "body only" sales; the Company's estimates for capital expenditures of municipalities for fire and emergency and refuse products, of airports for rescue and snow removal products and of large commercial waste haulers; the Company's ability to sustain market share gains by its fire and emergency and refuse products businesses; the Company's estimates for costs relating to insurance, steel, litigation and the Sarbanes-Oxley Act and related items; anticipated levels of capital expenditures, especially with respect to the rollout of the Revolution composite mixer drum; the Company's estimates for debt levels, interest rates and working capital needs; and that the Company does not complete any acquisitions. The Company cannot provide any assurance that the assumptions referred to in the forward-looking statements or otherwise are accurate or will prove to have been correct. Any assumptions that are inaccurate or do not prove to be correct could have a material adverse effect on the Company's ability to achieve the results that the forward-looking statements contemplate. Item 3. Quantitative and Qualitative Disclosures about Market Risk The Company's quantitative and qualitative disclosures about market risk for changes in interest rates and foreign exchange risk are incorporated by reference in Item 7A of the Company's Annual Report on Form 10-K for the year ended September 30, 2002 and have not materially changed since that report was filed, except as disclosed in Note 8 to the Condensed Consolidated Financial Statements and "Management's Discussion and Analysis of Consolidated Financial Condition and Results of Operations, Contractual Obligations and Commercial Commitments" herein. 44 Item 4. Controls and Procedures Evaluation of disclosure controls and procedures. In accordance with Rule 13a-15(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), the Company's management evaluated, with the participation of the Company's Chairman of the Board, President and Chief Executive Officer and Executive Vice President and Chief Financial Officer, the effectiveness of the design and operation of the Company's disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of the end of the quarter ended June 30, 2003. Based upon their evaluation of these disclosure controls and procedures, the Chairman of the Board, President and Chief Executive Officer and the Executive Vice President and Chief Financial Officer concluded that the disclosure controls and procedures were effective as of the end of the quarter ended June 30, 2003 to ensure that material information relating to the Company, including its consolidated subsidiaries, was made known to them by others within those entities, particularly during the period in which this Quarterly Report on Form 10-Q was being prepared. Changes in internal control. There was no change in the Company's internal control over financial reporting that occurred during the quarter ended June 30, 2003 that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting. 45 OSHKOSH TRUCK CORPORATION PART II. OTHER INFORMATION FORM 10-Q June 30, 2003 Item 1. Legal Proceedings None. Item 6. Exhibits and Reports on Form 8-K (a) Exhibits - ------------- 3.2 By-Laws of Oshkosh Truck Corporation, as amended May 16, 2003. 4.1 Third Supplemental Indenture, dated as of September 30, 2002, among Oshkosh Logistics Corporation, Total Mixer Technologies, L.L.C., Summit Performance Systems, L.L.C., Oshkosh Truck Corporation, the Subsidiary Guarantors and U.S. Bank, National Association. 31.1 Certification by the Chairman, President and Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act, dated July 31, 2003. 31.2 Certification by the Executive Vice President and Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act, dated July 31, 2003. 32.1 Written Statement of the Chairman, President and Chief Executive Officer, pursuant to 18 U.S.C.ss.1350, dated July 31, 2003. 32.2 Written Statement of the Executive Vice President and Chief Financial Officer, pursuant to 18 U.S.C. ss.1350, dated July 31, 2003. (b) Reports on Form 8-K - ------------------------ Current Report on Form 8-K dated April 24, 2003 reporting the announcement of the Company's earnings for the second quarter ended March 31, 2003, a conference call in connection with such announcement and risk factors for the Company. 46 SIGNATURES Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. OSHKOSH TRUCK CORPORATION July 31, 2003 /S/ R. G. Bohn ------------------------------------------- R. G. Bohn Chairman, President and Chief Executive Officer (Principal Executive Officer) July 31, 2003 /S/ C. L. Szews ------------------------------------------- C. L. Szews Executive Vice President and Chief Financial Officer (Principal Financial Officer) July 31, 2003 /S/ T. J. Polnaszek ------------------------------------------- T. J. Polnaszek Vice President and Controller (Principal Accounting Officer) 47 EXHIBIT INDEX - ------------- Exhibit No. Description - ----------- ----------- 3.2 By-Laws of Oshkosh Truck Corporation, as amended May 16, 2003. 4.1 Third Supplemental Indenture, dated as of September 30, 2002, among Oshkosh Logistics Corporation, Total Mixer Technologies, L.L.C., Summit Performance Systems, L.L.C., Oshkosh Truck Corporation, the Subsidiary Guarantors and U.S. Bank, National Association. 31.1 Certification by the Chairman, President and Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act, dated July 31, 2003. 31.2 Certification by the Executive Vice President and Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act, dated July 31, 2003. 32.1 Written Statement of the Chairman, President and Chief Executive Officer, pursuant to 18 U.S.C.ss.1350, dated July 31, 2003. 32.2 Written Statement of the Executive Vice President and Chief Financial Officer, pursuant to 18 U.S.C. ss.1350, dated July 31, 2003. 48 EX-3.2 3 cmw58a.txt BY-LAWS Amended May 16, 2003 Effective Immediately Unless Otherwise Noted BY-LAWS OF OSHKOSH TRUCK CORPORATION (a Wisconsin corporation) 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 or by the registered agent. The business office of the registered agent of the corporation shall be identical to such registered office. ARTICLE II. SHAREHOLDERS 2.01. Annual Meeting. The annual meeting of the shareholders (the "Annual Meeting") shall be held on the first Tuesday in February of each year at such time or on such other date as may be fixed by or under the authority of the Board of Directors. If the day fixed for the Annual Meeting shall be a legal holiday in the State of Wisconsin, then such meeting shall be held on the next succeeding Business Day (as defined below). 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. At each Annual Meeting, the shareholders shall elect individuals to the Board of Directors in accordance with the articles of incorporation. At any such Annual Meeting, only other business properly brought before the Annual Meeting in accordance with Section 2.11 may be transacted. 2.02. Special Meeting. (a) A special meeting of the shareholders (a "Special Meeting") may be called only by (i) a majority of the Board of Directors, (ii) the Chairman of the Board or (iii) the President. The President shall call a Special Meeting upon the demand, in accordance with this Section 2.02, of the holders of record representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting. (b) To enable the corporation to 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 on which the Board of Directors adopts the resolution fixing the Demand Record Date and shall not be more than ten days after the date on which the resolution fixing the Demand Record Date is adopted by the Board of Directors. Any shareholder of record entitled to demand a Special Meeting who is seeking to have shareholders demand a Special Meeting shall, by sending written notice to the Secretary at the principal offices 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 ten 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 ten days after the date on which such request is received by the Secretary at the principal offices of the corporation, then 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 at the principal offices of the corporation. 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 and by the beneficial owner or owners, if any, on whose behalf the request is made, shall bear the date of signature of each such shareholder and any such beneficial owner and shall set forth all information about each such shareholder and any such beneficial owner that would be required to be set forth in a shareholder's notice described in Section 2.11(a)(ii) as if the notice related to an Annual Meeting. (c) 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, calculated as if the Demand Record Date were the record date for the Special Meeting, must be delivered to the Secretary at the principal offices of 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 Section 2.02(b)), shall be signed by one or more persons who as of the Demand Record Date are shareholders of record and by the beneficial owners, if any, on whose behalf the demand is made, shall bear the date of signature of each such shareholder and any such beneficial owner, shall set forth the name and address of each such shareholder (as they appear in the corporation's books) and any such beneficial owner signing such demand and the class and number of shares of the corporation that are owned of record and/or beneficially by each such shareholder and any such beneficial owner, shall be sent to the Secretary at the principal offices of the corporation, by hand or by certified or registered mail, return receipt requested, and shall be received by the Secretary at the principal offices of the corporation within seventy 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 Section 2.02(c), 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 a director at such meeting is elected, then the Soliciting Shareholders shall not be required to pay such costs. For purposes of these by-laws, the following terms shall have the respective 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. 2 (ii) "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. (iii) "Participant" shall have the meaning assigned to such term in Rule 14a-12 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (iv) "Person" shall mean any individual, firm, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity. (v) "Proxy" shall have the meaning assigned to such term in Rule 14a-1 promulgated under the Exchange Act. (vi) "Solicitation" shall have the meaning assigned to such term in Rule 14a-1 promulgated under the Exchange Act. (vi) "Soliciting Shareholder" shall mean, with respect to any Special Meeting demanded by a shareholder or shareholders, each of the following Persons: (A) if the number of shareholders signing the demand or demands of meeting delivered to the Secretary at the principal offices of the corporation pursuant to Section 2.02(c) is ten or fewer, each Person signing any such demand; or (B) if the number of shareholders signing the demand or demands of meeting delivered to the corporation pursuant to Section 2.02(c) is more than ten, 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 Secretary at the principal offices of the corporation of the documents described in Section 2.02(c) had engaged or intends to engage in any Solicitation of Proxies for use at such Special Meeting (other than a Solicitation of Proxies on behalf of the corporation). A "Soliciting Shareholder" shall also mean each Affiliate of a Soliciting Shareholder described in clause (A) or (B) above who is a member of such Soliciting Shareholder's "group" for purposes of Rule 13d-5(b) under the Exchange Act, and any other Affiliate of such a Soliciting Shareholder, if a majority of the directors then in office determines, reasonably and in good faith, that such Affiliate should be required to sign the written notice described in Section 2.02(c) and/or the written agreement described in this Section 2.02(d) 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 date and hour as may be designated by whichever of the Board of Directors or the Chairman of the Board shall have called such meeting. In the case of any Special Meeting called by the Chairman of the Board upon the demand of shareholders (a "Demand Special Meeting"), such meeting shall be held at such date and hour as may be designated by the Board of Directors; provided, however, that the date of any Demand Special Meeting shall be not more than seventy days after the Meeting Record Date (as defined in Section 2.05(a)); and provided further that in the event that the directors then in office fail to designate a date and hour for a Demand Special Meeting within ten 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 3 all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting, calculated as if the Demand Record Date were the record date for the Special Meeting, are delivered to the corporation (the "Delivery Date"), then such meeting shall be held at 10:00 A.M., local time, on the 100th day after the Delivery Date or, if such 100th day is not a Business Day, on the first preceding Business Day. In fixing a meeting date for any Special Meeting, the Board of Directors or the Chairman of the Board may consider such factors as it, he or she deems relevant within the good faith exercise of its, his or her 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 or the Chairman of the Board to call an Annual Meeting or 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) five 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 any issue proposed to be considered at the Special Meeting, calculated as if the Demand Record Date were the record date for the Special Meeting. Nothing contained in this Section 2.02(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 five Business Day period, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto). 2.03. Place of Meeting. The Board of Directors or the Chairman of the Board may designate any place, either within or without the State of Wisconsin, as the place of meeting for any Annual Meeting or Special Meeting. If no designation is made, then the place of meeting shall be the principal office of the corporation. Any meeting may be postponed or adjourned pursuant to Section 2.07 to reconvene at any place designated by vote of the Board of Directors or by the Chairman of the Board. 2.04. Notice of Meeting. (a) Written notice stating the place, day and hour of an Annual Meeting or Special Meeting shall be delivered not less than ten days nor more than seventy days before the date of the meeting (unless a different date is required by the law or the articles of incorporation), by or at the direction of the Chairman of the Board or the Secretary, to each shareholder of record entitled to vote at such meeting and to such other persons as are required by the Wisconsin Business Corporation Law. In the event of any Demand Special Meeting, such notice of meeting shall be sent prior to the later of (x) the two days after the Meeting Record Date for such Demand Special Meeting and (y) thirty days after the Delivery Date. For purposes of this Section 2.04, notice by "electronic transmission" (as defined in the Wisconsin Business Corporation Law) is written notice. Written notice pursuant to this Section 2.04 shall be deemed to be effective (a) when mailed, if mailed postpaid and addressed to the shareholder's address shown in the corporation's current record of shareholders or (b) when electronically transmitted to the shareholder in a manner authorized by the shareholder. (b) In the case of any Special Meeting, (i) the notice of meeting shall describe any business that the Board of Directors shall have theretofore determined to bring before the meeting and (ii) in the case of a Demand Special Meeting, the notice of meeting (A) shall describe any business set forth in the statement of purpose of the demands received by the corporation in accordance with Section 2.02, (B) 4 shall contain all of the information required in the notice received by the corporation in accordance with Section 2.11(b) and (C) shall describe any business that the Board of Directors shall have theretofore determined to bring before the Demand Special Meeting. Except as otherwise provided in these by-laws, in the articles of incorporation or in the Wisconsin Business Corporation Law, the notice of an Annual Meeting need not include a description of the purpose or purposes for which the meeting is called. (c) If any Annual Meeting or Special Meeting is adjourned to a different date, time or place, then 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, then 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. (a) The Board of Directors may fix in advance a date not less than ten days and not more than seventy days prior to the date of an 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 thirty 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 Annual Meeting or Special Meeting. When a determination of shareholders entitled to notice of or to vote at the Annual Meeting or Special Meeting has been made as provided in this section, such determination shall be applied to any adjournment thereof unless the Board of Directors fixes a new Meeting Record Date and except as otherwise required by law. A new Meeting Record Date must be set if a meeting is adjourned to a date more than one hundred twenty days after the date fixed for the original meeting. (b) The Board of Directors may also fix in advance a date as the record date for the purpose of determining shareholders entitled to take any other action or determining shareholders for any other purpose other than those set forth in Section 2.02(a) and Section 2.05(a). Such record date shall not be more than seventy days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the Board of Directors does not fix a record date for the determination of shareholders entitled to receive a share dividend or distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation's shares), then the close of business on the date on which the resolution of the Board of Directors is adopted declaring the dividend or distribution shall be the record date. 2.06. Voting Records. 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 shareholders' 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. Any shareholder or his, her or its agent or attorney, on written demand, may inspect the shareholders' list beginning two Business Days after the corporation gives the notice of the meeting for which the shareholders' 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 and, if and to the extent entitled to do so under the Wisconsin Business Corporation Law, may copy the shareholders' list, during regular business hours and at his, her or its expense, during the period that it is available for inspection hereunder. The corporation shall make the shareholders' list available at the meeting and any shareholder or his, her or its agent or attorney may inspect the shareholders' list at any 5 time during the meeting or any adjournment thereof. The original stock transfer books of the corporation shall be prima facie evidence as to who are the shareholders entitled to inspect the shareholders' list or to vote at any meeting of the shareholders. Refusal or failure to prepare or make available the shareholders' list shall not affect the validity of any action taken at a meeting of shareholders. 2.07. Quorum; Postponement; Adjournments. (a) Shares entitled to vote as a separate voting group may take action on a matter at an Annual Meeting or Special Meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise provided in the articles of incorporation or in the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast on a matter by the voting group shall constitute a quorum of that voting group for action on that matter. Once a share is represented for any purpose at an 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 the meeting unless a new Meeting Record Date is or must be set for the adjourned meeting. If a quorum exists, then action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation or the Wisconsin Business Corporation Law requires a greater number of affirmative votes. Unless otherwise provided in the 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 a 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 by 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 Chairman of the Board or pursuant to a resolution of the Board of Directors; provided, however, that a Demand Special Meeting adjourned pursuant to clause (ii) must be reconvened on or before the 100th day following the Delivery Date. 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 that might have been transacted at the meeting as originally noticed. 2.08. Conduct of Meetings. The Chairman of the Board or, in his or her absence, the President or, in the President's absence, a Vice President designated by the Board of Directors, shall call any Annual Meeting or Special Meeting to order and shall act as chairman of the meeting, and the Secretary shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. The Board of Directors may, to the extent not prohibited by law, adopt by resolution such rules and regulations for the conduct of an Annual Meeting or Special Meeting as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations or procedures and to do such acts as, in the judgment of the chairman of the meeting, are appropriate for the proper conduct of an Annual Meeting or Special Meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may to the extent not prohibited by law include, without limitation, the following: 6 (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies (which shall be reasonable in number) or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; (e) limitations on the time allotted to questions or comments by participants; (f) rules and procedures regarding the execution of election ballots before or after the time fixed for the commencement of the meeting; (g) the appointment of an inspector of election or an officer or agent of the corporation authorized to tabulate votes; and (h) rules and procedures to facilitate the conduct of, and participation in, the meeting by electronic means. 2.09. Proxies. At any Annual Meeting or Special Meeting, a shareholder entitled to vote may vote in person or by proxy. A shareholder entitled to vote at any Annual Meeting or Special Meeting may authorize another person to act for the shareholder by appointing the person as a proxy. The means by which a shareholder or the shareholder's authorized officer, director, employee, agent or attorney-in-fact may authorize another person to act for the shareholder by appointing the person as proxy include: (a) Appointment of a proxy in writing by signing or causing the shareholder's signature to be affixed to an appointment form by any reasonable means, including, without limitation, by facsimile signature. (b) Appointment of a proxy by transmitting or authorizing the transmission of an electronic transmission of the appointment to the person who will be appointed as proxy or to a proxy solicitation firm, proxy support service organization or like agent authorized to receive the transmission by the person who will be appointed as proxy. Every electronic transmission shall contain, or be accompanied by, information that can be used to reasonably determine that the shareholder transmitted or authorized the transmission of the electronic transmission. Any person charged with determining whether a shareholder transmitted or authorized the transmission of the electronic transmission shall specify the information upon which the determination is made. An appointment of a proxy is effective when a signed appointment form or an electronic transmission of the appointment is received by the inspector of election or the officer or agent of the corporation authorized to tabulate votes. Unless the appointment form or electronic transmission states that the proxy is irrevocable and the appointment is coupled with an interest, a proxy may be revoked at any time before it is voted, either by written notice filed with the Secretary or the 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 made an effective proxy appointment shall not of itself constitute a revocation. A proxy appointment is valid for eleven months unless a different period is expressly provided in the appointment. The Board of Directors, the Chairman of the Board and the President each shall have the power and authority to make rules as to the validity and sufficiency of proxies. 2.10. Voting of Shares. Each outstanding share shall be entitled to one vote on each matter submitted to a vote at any 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 articles of incorporation. 7 2.11. Notice of Shareholder Business and Nomination of Directors. (a) Annual Meetings. (i) Nominations of persons for election to the Board of Directors 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 (1) is a shareholder of record at the time of giving of notice provided for in this Section 2.11, (2) is entitled to vote with respect to such nomination or other business at the meeting under the articles of incorporation and (3) complies with the notice procedures set forth in this Section 2.11. (ii) For nominations or other business to be properly brought before an Annual Meeting by a shareholder pursuant to Section 2.11(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary. To be timely, a shareholder's notice shall be received by the Secretary at the principal offices of the corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date set forth in the corporation's proxy statement for the immediately preceding Annual Meeting as the date on which the corporation first mailed or intended to mail definitive proxy materials for the immediately preceding Annual Meeting (the "Anniversary Date"); provided, however, that if the date for which the Annual Meeting is called more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall the announcement of an adjournment of an Annual Meeting commence a new time period for the giving of a shareholder notice as described above. Such shareholder's notice shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the corporation's books) and any such beneficial owner; (II) the class and number of shares of the corporation that are owned of record and/or beneficially by such shareholder and any such beneficial owner; (III) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote under the articles of incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all arrangements or understandings between such shareholder and any such beneficial owner 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 and any such beneficial owner, (3) such other information regarding each nominee proposed by such shareholder and any such beneficial owner 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 (4) 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; (V) in the case of any proposed removal of a director, (1) the names of 8 the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VI) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) 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, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting and (3) any material interest in such business of such shareholder and any such beneficial owner. (iii) Notwithstanding anything in the second sentence of Section 2.11(a)(ii) to the contrary, if the number of directors to be elected to the Board of Directors 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 forty-five days prior to the Anniversary Date, then a shareholder's notice required by this Section 2.11 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 offices 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. 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 with respect to such nominations at the meeting under the articles of incorporation and (C) complies with the notice procedures set forth in this Section 2.11. Any shareholder permitted to nominate persons for election to the Board of Directors pursuant to clause (ii) of the preceding sentence who desires 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 at the principal offices of the corporation not earlier than ninety days prior to such Special Meeting and not later than the close of business on the later of (I) the 60th day prior to such Special Meeting and (II) 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 and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (1) the name and address of such shareholder (as they appear in the corporation's books) and any such beneficial owner; (2) the class and number of shares of the corporation that are owned of record and/or beneficially by such shareholder and any such beneficial owner; (3) 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; (4) the name and residence address of the person or persons to be nominated; (5) a description of all arrangements or understandings between such shareholder and any such beneficial owner 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 and any such beneficial owner; (6) such other information regarding each nominee proposed by such shareholder and any such beneficial owner 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 (7) 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. 9 (c) General. (i) Only persons who are nominated in accordance with the procedures set forth in this Section 2.11 shall be eligible to be elected as directors at an Annual Meeting or Special Meeting. 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 2.11. 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 2.11 and, if any proposed nomination or business is not in compliance with this Section 2.11, to declare that such defective proposal shall be disregarded. (ii) For purposes of this Section 2.11, "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 2.11, 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 2.11. Nothing in this Section 2.11 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 2.12 Voting of Shares by Certain Holders. (a) Other Corporations. Shares standing in the name of another corporation may be voted, either in person or by proxy, by the president of such other corporation or any other officers appointed by such president. An appointment of a proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer's authority to act, in the absence of express notice to the contrary, given in writing by the Board of Directors of such other company to the Secretary. (b) Legal Representatives and Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver or assignee for creditors may be voted by such person, either in person or by proxy, without a transfer of such shares into such person's name, provided that there is filed with the Secretary before or at the time of the meeting proper evidence of such person's incumbency and the number of shares held. Shares held by a fiduciary may be voted by the person acting in such capacity, either in person or by proxy. A proxy executed by a fiduciary, shall be conclusive evidence of the signer's authority to act, in the absence of express notice to the contrary, given in writing to the Secretary. (c) Pledges. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (d) Treasury Stock and Subsidiaries. Neither treasury shares nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other 10 corporation is held by this corporation shall be voted at any Annual Meeting or Special Meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity, or held by such other corporation in a fiduciary capacity, shall be entitled to vote and shall be counted in determining the total number of outstanding shares entitled to vote. (e) Minors. Shares held by a minor may be voted by such minor in person or by proxy, and no such vote shall be subject to disaffirmance or avoidance, unless, prior to such vote, the Secretary has received written notice or has actual knowledge that such shareholder is a minor. (f) Incompetents and Spendthrifts. Shares held by a incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy, and no such vote shall be subject to disaffirmance or avoidance, unless, prior to such vote the Secretary, has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or has actual knowledge of filing of judicial proceedings for appointment of a guardian. (g) Joint Tenants. Shares registered in the names of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his or her legal representative is present at the meeting and claims the right to participate in the voting of such shares or prior to the vote filed with the Secretary a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary has no actual knowledge that the survivor has been adjudicated not to be the successor to the interest of those deceased. 2.12. Waiver of Notice by Shareholders. Whenever any notice is required to be given to any shareholder of the corporation under the articles of incorporation, these by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of the meeting, and delivered to the Secretary for inclusion in the corporation's records, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Wisconsin Business Corporation Law shall contain the same information as would have been required to be included in such notice, except the date, time and place of the meeting. 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 articles of incorporation, these by-laws or any provision of 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 and delivered to the Secretary for inclusion in the corporation's records. ARTICLE III. BOARD OF DIRECTORS 3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be fixed from time to 11 time exclusively by the Board of Directors pursuant to a resolution adopted by the affirmative vote of a majority of the total number of directors that the corporation would have if there were no vacancies. 3.02. Tenure and Qualifications. Each director shall hold office until the next Annual Meeting, and until his or her successor shall have been elected, or until his or her prior death, resignation or removal. A Director may be removed from office by affirmative vote of a majority of the outstanding shares entitled to vote for the election of such director, taken at a Special Meeting called for that purpose. A director may resign at any time by filing his or her written resignation with the Secretary, which shall be effective when the notice is delivered unless the notice specifies a later date. Directors need not be residents of the State of Wisconsin or shareholders of the corporation. No one shall be eligible for election as a director nor shall any directors be eligible for re-election after attaining the age of seventy-two. 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after an Annual Meeting, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the Annual Meeting that precedes it or such other suitable place as may be announced at the 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. 3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board, the President, the Secretary or any two directors. If such meeting shall be called by two directors, the date of the meeting shall be within ten days of receipt by the Secretary or, in his absence by the Chairman of the Board, the President or any Assistant Secretary, of their request, at a time determined by such officer. The Chairman of the Board, the President or the Secretary calling any special meeting of the Board of Directors, except as otherwise provided by by-law, may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin. 3.05. Notice; Waiver. Notice of meetings of the Board of Directors (unless otherwise provide in or pursuant to Section 3.03) shall be given by written notice delivered personally or mailed or given by telegram or facsimile to each director at his or her business address or at such other address as such director shall have designated in writing filed with the Secretary, in each case not less five days if by mail and not less than forty-eight hours if by telegram, telephone, teletype, telegraph, facsimile or other form of wire or wireless communication, or personal delivery. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram or facsimile, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or these by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need to be specified in the notice or waiver of notice of such meeting. 3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors as provided in Section 3.01 shall constitute a quorum 12 for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice. 3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws. Annually, at the meeting of the Board of Directors which follows the Annual Meeting, the directors shall choose from among them a Chairman of the Board, who shall serve as such until a successor is elected. 3.08. Conduct of Meetings. In the absence of the Chairman of the Board, the President shall call the meeting of the Board of Directors to order, and shall act as chairman of the meeting, and in their absence any director chosen by the Directors present shall call the meeting of the Board of Directors to order and shall act as chairman of the meeting. The Secretary shall act as Secretary of all meetings of the Board of Directors but, in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. 3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof; and provided further, that a vacancy filled by the Board of Directors shall be filled by the vote of the remaining director(s) elected by the class of shareholders which would be entitled to fill that vacancy at a meeting of the shareholders. 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 from time to time a reasonable compensation for directors of the corporation; provided that persons who are directors and also are officers or employees of the corporation eligible shall be ineligible to receive compensation as directors. By affirmative vote of a majority of such directors, and irrespective of any personal interest of any of them, the Board of Directors also may establish, from time to time, a reasonable compensation for each of the officers of the corporation. The Board of Directors, from time to time, may delegate its authority under this by-law 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 services rendered by such directors, officers and employees of 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 or she is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file his or her written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 3.12. Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of them then in office may designate one or more committees from time to time. Each such committee shall consist of at least two directors and shall have those of the powers of the Board 13 of Directors as shall be granted to such committee. Each such committee may exercise its power at times when the Board of Directors is not in session, subject to these by-laws and the Wisconsin Business Corporation Law. The Board of Directors also at any time may elect one or more of its members as alternate members of any such committee. Any such alternate, upon request by the Chairman of the Board, or in his or her absence the President, or in his or her absence the Chairman of such committee, may take the place of any absent member or members of the committee at any of its meetings. Except as provided by these by-laws or by resolution of the Board of Directors, each such committee shall fix its own rules governing the conduct of its activities as the Board of Directors may request. 3.13. Unanimous Consent Without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors at a meeting or by resolution may be taken without a meeting, if a consent in writing, setting forth the action so taken, shall be signed by all of the directors then in office. 3.14. Telephonic Meetings. Except as provided by this by-law, any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors at a meeting or by resolution may be taken by a quorum of the Board of Directors at a telephonic meeting or other meeting utilizing electronic communication, if all participating directors: are informed that a meeting is taking place at which official business may be transacted; simultaneously may hear each other during the meeting; immediately is able to send messages to all other participating directors; and if all communication during the meeting immediately is transmitted to each participating director. No meeting of the Board of Directors held pursuant to this by-law may vote upon a plan of merger or shares exchange; or to sell, lease, exchange or otherwise dispose of substantial property or assets of the corporation; to dissolve voluntarily or to revoke voluntary dissolution proceedings; or to file for bankruptcy. ARTICLE IV. OFFICERS 4.01. Number. The principal officers of the corporation shall be a President, any number of Vice Presidents, 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 Chairman of the Board or the President. Any two or more offices may be held by the same person, except the offices of President and Secretary and the offices of President and Vice President. 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 may be convenient. Each officer shall hold office until his or her successor shall have been duly elected or until his or her prior death, resignation or removal. 4.03. Resignation; Removal. Any officer may resign at any time by delivering written notice to an officer of the corporation. A resignation shall be effective when delivered unless the notice specifies a later date which is accepted by the corporation. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interest of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights. 14 4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise shall be filled by the Board of Directors for the unexpired portion of the term. 4.05. This Section 4.05 is intentionally left vacant. 4.06. President and Chief Executive Officer. The President shall be the Chief Executive Officer. Subject to the control of the Board of Directors, he shall be responsible for the control and general management of all of the business and affairs of the corporation. In the absence of the Chairman of the Board he may preside at all meetings of the shareholders and of the Board of Directors. He shall see that all resolutions and orders of the Board of Directors and its committees are carried into effect. 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 ordinary business of the corporation, or which shall be authorized by resolution of the Board of Directors. Except as otherwise provided by law or the Board of Directors, he also 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 have the powers of supervision of the business of the corporation. 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. 4.07. 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. The Board of Directors may designate a Vice President as the Chief Financial Officer, in which event he or she shall have responsibility for all financial matters which affect the corporation other than those expressly provided for the Treasurer. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the President or 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 or her authority to act in the stead of the President. 4.08. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office addresses of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him or her by the President or by the Board of Directors. 15 4.09. The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for money due and payables to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Section 5.04; and (c) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 4.10. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors, the Chairman of the Board or the President 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. 4.11. Other Assistants and Acting Officers. The Board of Directors, the Chairman of the Board and the President each shall have the power to appoint any person to act as Assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors, the Chairman of the Board or the President. 4.12. 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, in his absence by one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer, an Assistant Treasurer, or Controller. When necessary or required by law, the Secretary or an Assistant Secretary shall affix the corporate seal to all such instruments. When an instrument has been executed in the manner provided by this Section, no party or third person shall be required to inquire into the authority of the officers signing for the corporation so to act. 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 16 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 and, in his absence, by any Vice President then present, and (b) whenever in the judgment of the President and, in his absence, by any Vice President, it is desirable for this corporation to execute a proxy or written consent in respect to any share 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, in his absence, by any Vice President, without necessity of any authorization by the Board of Directors, affixation of corporate seal, or counter-signature or attestation by another officer. Any person or persons designated in the manner provided by this Section as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation. ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.01. Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. All certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates shall be numbered consecutively or otherwise identified. The name and address of each person to whom a certificate is issued, together with the number of shares represented by the certificate and the date of its issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation shall be canceled. No new certificate for previously issued shares shall be issued until the outstanding certificate(s) for the same share shall have been surrendered and canceled, except as provided by Section 6.06. 6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificate 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 manually signed on behalf of a transfer agent, or 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. 17 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 have and exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and compliance with such other regulations as may be prescribed by or 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 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) satisfied such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors. 6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, on other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid. 6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation. ARTICLE VII. INDEMNIFICATION 7.01 Certain Definitions. The following capitalized terms (including any plural forms thereof) used in this Article VII shall be defined as follows: (a) "Affiliate" shall include, without limitation, any corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise, whether domestic or foreign, 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 7.04. 18 (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 7.04, to constitute conduct as a result of which the Director or Officer is not entitled to mandatory indemnification under 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 VII, (i) "Director or Officer" shall include a director or officer of a Subsidiary (whether or not otherwise serving as a Director of Officer), (ii) the term "employee benefit plan" as used in the Statute shall include an employee benefit plan sponsored, maintained or contributed to by a Subsidiary and (iii) it shall be conclusively presumed that any Director or Officer serving as a director, officer, partner, member, trustee, member of any governing or decision-making committee, manager, 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) "Expenses" shall mean and include fees, costs, charges, disbursements, attorney fees and any other expenses incurred in connection with a Proceeding. (i) "Liability" shall mean and include the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including an excise tax assessed with respect to an employee benefit plan, and reasonable Expenses. (j) "Party" shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VII, 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. (k) "Proceeding" shall have the meaning set forth in the Statute; provided, that, in accordance with the Statute and for purposes of this Article VII, the term "Proceeding" shall also include all Proceedings (i) brought under (in whole or in part) the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, 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. (l) "Statute" shall mean the provisions of the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes, relating to indemnification and insurance for Directors, Officers 19 and others, which are contained in Wisconsin Statutes Sections 180.0850 through 180.0859 as of May 16, 2003, as the same shall then be in effect, including any amendments thereto after May 16, 2003, 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. (m) "Subsidiary" shall mean any direct or indirect subsidiary of the Corporation as determined for financial reporting purposes, whether domestic or foreign. 7.02 Mandatory Indemnification of Directors and Officers. 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. 7.03 Procedural Requirements. (a) A Director or Officer who seeks indemnification under Section 7.02 shall make a written request therefor to the Corporation. Subject to Section 7.03(b), within sixty 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 7.05). (b) No indemnification shall be required to be paid by the Corporation pursuant to Section 7.02 if, within such sixty-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 7.03(b), the Board shall immediately authorize by resolution that an Authority, as provided in Section 7.04, 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 sixty-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. 7.04 Determination of Indemnification. (a) If the Board authorizes an Authority to determine a Director's or Officer's right to indemnification pursuant to Section 7.03, 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; 20 (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 (other than this Article VII), 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 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 sixty 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 7.05), including interest thereon at a reasonable rate, as determined by the Authority, within ten 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 7.04 by either the Corporation or the Director or Officer, including, without limitation, all Expenses of the selected Authority, shall be paid by the Corporation. 7.05 Mandatory Allowance of Expenses. (a) The Corporation shall pay or reimburse from time to time or at any time, within ten 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 7.05 if it is ultimately 21 determined by an Authority that he or she is not entitled to be indemnified by the Corporation for such Expenses pursuant to Section 7.04. (b) If the Director or Officer must repay any previously advanced Expenses pursuant to this Section 7.05, such Director or Officer shall not be required to pay interest on such amounts. 7.06 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 who is not a Director or Officer, to the extent he or she has been successful on the merits or otherwise in defense of a Proceeding, for all reasonable Expenses incurred in the Proceeding if the employee was a Party because he or she was an employee of the Corporation. (c) The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify (to the extent not otherwise provided in Section 7.06(b)) 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. 7.07 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 VII. 7.08 Notice to the Corporation. A Director, Officer or employee 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 7.04(a)). 7.09 Severability. If any provision of this Article VII shall be deemed invalid or inoperative, or if a court of competent jurisdiction determines that any of the provisions of this Article VII contravene public policy, this Article VII 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. 22 7.10 Nonexclusivity of Article VII. The rights of a Director, Officer or employee (or any other person) granted under this Article VII 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 VII shall be deemed to limit the Corporation's obligations to indemnify against Liabilities or allow Expenses to a Director, Officer or employee under the Statute. 7.11 Contractual Nature of Article VII; Changes to Rights. This Article VII 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 VII 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 VII with regard to acts, omissions or events arising prior to such repeal or limitation. If the Statute is amended to permit or require the Corporation to provide broader indemnification rights than this Article VII permits or requires, then this Article VII shall be automatically amended and deemed to incorporate such broader indemnification rights. ARTICLE VIII. AMENDMENTS 8.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented and entitled to vote thereon under the articles of incorporation at any Annual Meeting or Special Meeting at which a quorum is in attendance. 8.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides. 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 shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized. 23 EX-4.1 4 cmw58b.txt THIRD SUPPLEMENTAL INDENTURE THIRD SUPPLEMENTAL INDENTURE THIRD SUPPLEMENTAL INDENTURE, (this "Supplemental Indenture") is executed as of the 30th day of September, 2002, among Oshkosh Logistics Corporation (f/k/a Total Mixer Technologies Corporation), a Wisconsin corporation, Total Mixer Technologies, L.L.C., a Wisconsin limited liability company, and Summit Performance Systems, L.L.C., a Wisconsin limited liability company (each, a "Guaranteeing Subsidiary" and collectively, the "Guaranteeing Subsidiaries") and each a direct or indirect subsidiary, as the case may be, of Oshkosh Truck Corporation, a Wisconsin corporation (the "Company"), the Company, the Subsidiary Guarantors (as defined in the Indenture referred to herein) and U.S. Bank, National Association, as successor in interest to Firstar Trust Company, as trustee under the Indenture referred to below (the "Trustee"). From time to time herein as the context requires, the Guaranteeing Subsidiaries are also referred to as "Subsidiary Guarantors". W I T N E S S E T H WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of February 26, 1998 providing for the issuance of an aggregate principal amount of up to $150,000,000 of 8 3/4% Senior Subordinated Notes due 2008 (the "Notes"); WHEREAS, the Indenture provides that under certain circumstances a Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the "Subsidiary Guarantee"); and WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Subsidiary Guarantors, each Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. Agreement to Guarantee. Each Guaranteeing Subsidiary hereby agrees as follows: (a) Along with all Subsidiary Guarantors named in the Indenture, to jointly and severally Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (i) The principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) In case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. (b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, an action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. (c) The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever. (d) This Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. (e) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. (f) No Subsidiary Guarantor shall be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. (g) As between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any 2 declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. (h) The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. (i) Pursuant to Section 10.02 of the Indenture, after giving effect to any maximum amount and any other contingent and fixed liabilities that are relevant under any applicable bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under Article 10 of the Indenture shall result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance. 3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Subsidiary Guarantees shall remain in full force and effect notwithstanding any failure to enforce on each Note a notation of such Subsidiary Guarantee. 4. Guaranteeing Subsidiaries May Consolidate, Etc. on Certain Terms. (a) No Guaranteeing Subsidiary may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another corporation, Person or entity whether or not affiliated with such Subsidiary Guarantor unless: (i) subject to Section 11.05 of the Indenture, the Person formed by or surviving any such consolidation or merger (if other than a Subsidiary Guarantor or the Company) unconditionally assumes all the obligations of such Subsidiary Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee, under the Notes, the Indenture and the Subsidiary Guarantee on the terms set forth herein or therein; and (ii) immediately after giving effect to such transaction, no Default or Event of Default exists. (b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Subsidiary Guarantor, such successor corporation shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor corporation thereupon may cause to be singed any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Subsidiary Guarantees so issued shall in all respects have the same legal rank and benefit under the Indenture as the Subsidiary 3 Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof. (c) Except as set forth in Articles 4 and 5 of the Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or in any of the Notes shall prevent any consolidation or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety to the Company or another Subsidiary Guarantor. 5. Releases. (a) In the event of a sale or other disposition of all of the assets of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all to the capital stock of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Subsidiary Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.10 of the Indenture. Upon delivery by the Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of the Indenture, including without limitation Section 4.10 of the Indenture, the Trustee shall execute any documents reasonably required in order to evidence the release of any Subsidiary Guarantor from its obligations under its Subsidiary Guarantee. (b) Any Subsidiary Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Subsidiary Guarantor under the Indenture as provided in Article 10 of the Indenture. 6. No Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder or agent of each Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy. 4 7. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 8. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 9. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. 10. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by each Guaranteeing Subsidiary and the Company. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written. OSHKOSH TRUCK CORPORATION By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer MEDTEC AMBULANCE CORPORATION By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer PIERCE WESTERN REGION REFURBISHMENT CENTER, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer KEWAUNEE FABRICATIONS, L.L.C. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer 5 VIKING TRUCK & EQUIPMENT SALES, INC., a Michigan corporation By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer VIKING TRUCK & EQUIPMENT SALES, INC., an Ohio corporation By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer MCNEILUS FINANCIAL SERVICES, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer VIKING EQUIPMENT LEASING, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer MCNEILUS TRUCK & MANUFACTURING, By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer IOWA CONTRACT FABRICATORS, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer MCINTIRE FABRICATORS, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer 6 KENSETT FABRICATORS, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer MCNEILUS COMPANIES, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer MCNEILUS FINANCIAL, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer PIERCE MANUFACTURING, INC. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer OSHKOSH LOGISTICS CORPORATION By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer TOTAL MIXER TECHNOLOGIES, L.L.C. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer SUMMIT PERFORMANCE SYSTEMS, L.L.C. By: /s/ Scott L. Ney Name: Scott L. Ney Title: Vice President and Treasurer 7 U.S. BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Peter M. Brennan Name: Peter M. Brennan Title: Assistant Vice President 8 EX-31.1 5 cmw58c.txt CERTIFICATION Exhibit (31.1) CERTIFICATION I, Robert G. Bohn, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Oshkosh Truck Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d - 15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. July 31, 2003 /S/ Robert G. Bohn ------------------------------------------------ Robert G. Bohn Chairman, President and Chief Executive Officer EX-31.2 6 cmw58d.txt CERTIFICATION Exhibit (31.2) CERTIFICATION I, Charles L. Szews, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Oshkosh Truck Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. July 31, 2003 /S/ Charles L. Szews ------------------------------------------------ Charles L. Szews Executive Vice President and Chief Financial Officer EX-32.1 7 cmw58e.txt WRITTEN STATEMENT Exhibit (32.1) Written Statement of the Chairman, President and Chief Executive Officer Pursuant to 18 U.S.C. ss.1350 Solely for the purposes of complying with 18 U.S.C. ss.1350, I, the undersigned Chairman, President and Chief Executive Officer of Oshkosh Truck Corporation (the "Company"), hereby certify, to the best of my knowledge, that the Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 2003 (the "Report") fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 and that information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /S/ Robert G. Bohn - ---------------------------- Robert G. Bohn July 31, 2003 EX-32.2 8 cmw58f.txt WRITTEN STATEMENT Exhibit (32.2) Written Statement of the Executive Vice President and Chief Financial Officer Pursuant to 18 U.S.C. ss.1350 Solely for the purposes of complying with 18 U.S.C. ss.1350, I, the undersigned Executive Vice President and Chief Financial Officer of Oshkosh Truck Corporation (the "Company"), hereby certify, to the best of my knowledge, that the Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 2003 (the "Report") fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 and that information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /S/ Charles L. Szews - ---------------------------- Charles L. Szews July 31, 2003 -----END PRIVACY-ENHANCED MESSAGE-----