ARTICLES OF AMENDMENT
relating to
SERIES A PREFERRED STOCK
of
GEHL COMPANY
Pursuant to Sections 180.0602 and 180.1002
of the Wisconsin Business Corporation Law
I, Michael J. Mulcahy, Vice President, Secretary and General
Counsel of Gehl Company, a corporation organized and existing under the
Wisconsin Business Corporation Law (the "Corporation"), in accordance with
the provisions of Sections 180.0602 and 180.1002 thereof, DO HEREBY CERTIFY
THAT:
A. Pursuant to the authority conferred upon the Board of
Directors of the Corporation by its Restated Articles of Incorporation and
in accordance with Sections 180.0602 and 180.1002 of the Wisconsin Business
Corporation Law, said Board of Directors adopted resolutions on May 28,
1997, creating a series of shares of Preferred Stock, $.10 par value, of
the Corporation, designated as Series A Preferred Stock.
B. Said resolutions of the Board of Directors of the
Corporation creating the series designated as Series A Preferred Stock
provide that said series shall have such designation and number of shares
and such preferences, limitations and relative rights as are set forth in
the paragraph below, which paragraph shall constitute Paragraph (5) of
Section A of Article III of the Corporation's Restated Articles of
Incorporation:
(5) Series A Preferred Stock.
(i) Designation and Amount. There is hereby created a
series of Preferred Stock which shall be designated as "Series A
Preferred Stock" (the "Series A Preferred Stock"); the number of
shares constituting such series shall be Two Hundred Fifty
Thousand (250,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the
corporation into Series A Preferred Stock.
(ii) Dividends and Distributions.
(a) The holders of shares of Series A Preferred
Stock, in preference to the holders of Common Stock and
of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the
first business days of January, April, July and October
in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of
(a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in
kind) of all noncash dividends or other distributions,
other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Payment Date, since the first
issuance of any share or fraction of a share of Series
A Preferred Stock. In the event the corporation shall
at any time after May 28, 1997 (the "Rights Declaration
Date") (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which
holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock that are
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(b) The corporation shall declare a dividend or
distribution on the Series A Preferred Stock as
provided in paragraph (a) above immediately after it
declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the
Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or
distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the
payment thereof.
(iii) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred
Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the shareholders of
the corporation. In the event the corporation shall at
any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares
of Common Stock that are outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any
other resolution of the Board of Directors creating a
series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a
vote of shareholders of the corporation.
(c) Except as set forth herein, holders of
Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except
to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any
corporate action.
(iv) Certain Restrictions.
(a) Whenever quarterly dividends or other
dividends or distributions payable on the Series A
Preferred Stock as provided in subparagraph (ii) are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on shares of Series A Preferred Stock outstanding shall
have been paid in full, the corporation shall not:
(1) declare or pay dividends on, make
any other distributions on, or
redeem or purchase or otherwise
acquire for consideration any
shares of stock ranking junior
(either as to dividends or upon
liquidation, dissolution or winding
up) to the Series A Preferred
Stock;
(2) declare or pay dividends on or make
any other distributions on any
shares of stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, except dividends paid
ratably on the Series A Preferred
Stock and all such parity stock on
which dividends are payable or in
arrears in proportion to the total
amounts to which the holders of all
such shares are then entitled;
(3) redeem or purchase or otherwise
acquire for consideration shares of
any stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, provided that the
corporation may at any time redeem,
purchase or otherwise acquire
shares of any such parity stock in
exchange for shares of any stock of
the corporation ranking junior to
or on a parity with (both as to
dividends or upon dissolution,
liquidation or winding up) the
Series A Preferred Stock; or
(4) purchase or otherwise acquire for
consideration any shares of
Series A Preferred Stock, or any
shares of stock ranking on a parity
with the Series A Preferred Stock,
except in accordance with a
purchase offer made in writing or
by publication (as determined by
the Board of Directors) to all
holders of such shares upon such
terms as the Board of Directors,
after consideration of the
respective annual dividend rates
and other relative rights and
preferences of the respective
series and classes, shall determine
in good faith will result in fair
and equitable treatment among the
respective series or classes.
(b) The corporation shall not permit any
corporation of which an amount of voting securities
sufficient to elect at least a majority of the
directors of such corporation is beneficially owned,
directly or indirectly, by the corporation or otherwise
controlled by the corporation to purchase or otherwise
acquire for consideration any shares of stock of the
corporation unless the corporation could, under
paragraph (a) of this subparagraph (iv), purchase or
otherwise acquire such shares at such time and in such
manner.
(v) Reacquired Shares. All shares of Series A Preferred
Stock that shall at any time have been reacquired by the
corporation shall, after such reacquisition, have the status of
authorized but unissued shares of Preferred Stock of the
corporation, without designation as to series, and may be
reissued as part of a new series of Preferred Stock, to be
created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
(vi) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the corporation, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (b) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series
A Preferred Stock and all other such parity stock in proportion
to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (a) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(vii) Consolidation, Merger, etc. In case the
corporation shall enter into any consolidation, merger,
combination, share exchange or other transaction in which the
shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any
such case the shares of Series A Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the corporation
shall at any time after the Rights Declaration Date (a) declare
any dividend on Common Stock payable in shares of Common Stock,
(b) subdivide the outstanding Common Stock, or (c) combine the
outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock that are outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(viii) No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
(ix) Amendment. To the fullest extent permitted by
applicable law, prior to such time as shares of Series A
Preferred Stock are issued and outstanding, the Board of
Directors may alter or revoke any of the number of shares of
Series A Preferred Stock, the powers, preferences or special
rights of the Series A Preferred Stock or the other terms of the
Series A Preferred Stock. From and after such time as shares of
Series A Preferred Stock are issued and outstanding, the Restated
Articles of Incorporation of the corporation shall not be amended
in any manner that would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so
as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
(x) Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A
Preferred Stock.
C. None of the shares of Series A Preferred Stock have been
issued as of the date hereof.
D. The amendment creating the Series A Preferred Stock was
adopted by the Board of Directors of the Corporation in accordance with
Section 180.1002 of the Wisconsin Business Corporation Law, and shareholder
action was not required.
IN WITNESS WHEREOF, the undersigned has executed and subscribed
these Articles of Amendment on behalf of the Corporation and does affirm
the foregoing as true this 28th day of May, 1997.
By: /s/ Michael J. Mulcahy
Michael J. Mulcahy
Vice President, Secretary and General
Counsel