RESTATED
ARTICLES OF INCORPORATION
OF
OSHKOSH TRUCK CORPORATION
Pursuant to Section 180.1007 of the Wisconsin Business Corporation
Law, these Restated Articles of Incorporation shall supersede and take the place
of the Corporation's heretofore existing Restated Articles of Incorporation and
all amendments thereto.
First: The name of the corporation is OSHKOSH TRUCK CORPORATION.
Second: The purpose for which the corporation is organized is to
engage in any lawful activity within the purposes of which corporations may be
organized under Chapter 180 of the Wisconsin Statutes.
Third: As of December 18, 1996, the authorized, issued and
outstanding common stock, one cent ($.01) par value, of the corporation consists
of Class A Common Stock ("Class A Common Stock") and Class B Common Stock
("Class B Common Stock"). Upon the effectiveness of these Restated Articles of
Incorporation, each issued and outstanding share of Class B Common Stock shall
immediately and automatically be redesignated without further act on anyone's
part as a share of "Common Stock" ("Common Stock"), and stock certificates
representing outstanding shares of Class B Common Stock shall thereupon and
thereafter be deemed to represent a like number of shares of Common Stock.
Until such time as no shares of Class A Common Stock are issued and
outstanding, Sections AA through DD of this Third Article shall govern and be
applicable. From and after such time as no shares of Class A Common Stock are
issued and outstanding, Sections A through D of this Third Article shall govern
and be applicable.
At such time as Sections AA through DD of this Third Article shall no
longer govern and apply, the appropriate officers of the corporation shall
promptly (i) cause to be prepared and duly filed with the Wisconsin Department
of Financial Institutions such documents as are necessary to restate these
Amended and Restated Articles to eliminate Sections AA through DD of this Third
Article and any other words, sentences, clauses or paragraphs contained in this
Third Article providing for or relating to Class A Common Stock and/or the
conversion of shares of Class A Common Stock into shares of Common Stock and
(ii) cause to be prepared and sent to registered holders of Common Stock a
notice to the effect that such action has been taken.
A. STOCK
The total number of shares of stock which the corporation shall have
the authority to issue is sixty-three million (63,000,000) shares itemized by
classes as follows:
1. Sixty-one million (61,000,000) shares of common stock, one
cent ($.01) par value, divided into the following classes: (a) one million
(1,000,000) shares of Class A Common Stock (the "Class A Common Stock"); and (b)
sixty million (60,000,000) shares of Common Stock (the "Common Stock").
2. Two million (2,000,000) shares of preferred stock, one cent
($.01) par value (the "Preferred Stock").
B. THE COMMON STOCK AND THE CLASS A COMMON STOCK
1. The holders of Common Stock shall be entitled to receive
dividends when and if declared by the Board of Directors out of any funds
legally available for the payment of such dividends; provided, however, that if
a share of Class A Common Stock shall be converted into Common Stock pursuant to
Paragraph 10.f of Section BB of this Third Article subsequent to the record date
for payment of a dividend or other distribution on shares of Class A Common
stock but prior to such payment, then the registered holder of such share at the
close of business on such record date shall be entitled to receive the dividend
or other distribution payable in the amount declared per share of Class A Common
Stock on the date set for payment of such dividend or other distribution
notwithstanding the conversion thereof or the corporation's default in payment
of the dividend or distribution due on such date.
2. Each share of Common Stock shall be entitled to one vote on
each matter submitted to a vote of holders of Common Stock; provided, however,
that if shares of Class A Common Stock shall be converted into Common Stock
pursuant to Paragraph 10.f of Section BB of this Third Article subsequent to the
record date for the determination of shareholders entitled to vote at a meeting
of shareholders or upon a matter otherwise presented for a shareholder vote, but
prior to such meeting or vote, then the registered holder of each share of Class
A Common Stock and Common Stock at the close of business on such record date
shall be entitled to one vote for each such share at such meeting or for such
vote on each matter presented for a vote by the holders of Class A Common Stock
and/or Common Stock.
3. In case of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation, the holders of Common Stock shall
be entitled to receive on a pro rata basis the proceeds of any remaining assets
of the corporation.
4. No holders of shares of Common Stock shall have a preemptive
right to acquire unissued shares of stock of the corporation or securities
convertible into such shares or carrying a right to subscribe to or acquire such
shares.
5. The rights of the Common Stock under this Section B of this
Third Article of these Restated Articles of Incorporation are subject to the
provisions of Section C below concerning the Preferred Stock.
6. From and after such time as no shares of Class A Common Stock
are issued and outstanding, the corporation shall not issue any shares of Class
A Common Stock.
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C. THE PREFERRED STOCK
The Preferred Stock may be issued in series, and authority is vested
in the Board of Directors, from time to time, to establish and designate series
and to fix the variations in the powers, preferences, rights, qualifications,
limitations or restrictions of any series of the Preferred Stock, but only with
respect to:
1. the dividend rate or rates and the preferences, if any, over
any other class or series (or of any other class or series over such class or
series) with respect to dividends, the terms and conditions upon which and the
periods in respect of which dividends shall be payable, whether and upon what
conditions such dividends shall be cumulative and, if cumulative, the date or
dates from which dividends shall accumulate;
2. the price and terms and conditions on which shares may be
redeemed;
3. the amount payable upon shares in the event of voluntary or
involuntary liquidation;
4. sinking fund provisions for the redemption or purchase of
shares;
5. the terms and conditions on which shares may be converted into
shares of any other class or series of the same or any other class of stock of
the Corporation, if the shares of any series are issued with the privilege of
conversion; and
6. voting rights, if any.
Except as to the matters expressly set forth above, all series of the
Preferred Sock shall have the same preference, limitations and relative rights
and shall rank equally, share ratably and be identical in all respects as to all
matters. All shares of any one series of the Preferred Stock shall be alike in
every particular.
D. GENERAL
1. Where approval by holders of shares of one or more classes of
the Common Stock and/or the Preferred Stock is required under the laws of the
State of Wisconsin to effect an amendment to these Restated Articles of
Incorporation, a merger or consolidation, a sale of the corporation's assets,
dissolution or otherwise, the affirmative vote of the holders of a majority of
the outstanding shares of each class entitled to vote on such matter, in class
votes where appropriate, shall be sufficient to approve the action.
AA. STOCK
The total number of shares of stock which the corporation shall have
the authority to issue is sixty-three million (63,000,000) shares itemized by
classes as follows:
1. Sixty-one million (61,000,000) shares of common stock, one
cent ($.01) par value, divided into the following classes: (a) one million
(1,000,000) shares of Class A
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Common Stock (the "Class A Common Stock"); and (b) sixty million (60,000,000)
shares of Common Stock (the "Common Stock") (the Class A Common Stock and the
Common Stock are hereinafter collectively referred to as the "Common Shares").
2. Two million (2,000,000) shares of preferred stock, one cent
($.01) par value (the "Preferred Stock").
BB. THE COMMON SHARES
1. Whenever any Dividend shall be paid by the corporation on the
Common Shares, such Dividend shall be paid so that the Dividend per share for
the Common Stock shall equal one hundred fifteen percent (115%) of the Dividend
per share for the Class A Common Stock. As used herein, the term "Dividend"
shall mean any dividend paid by the corporation in cash or other assets except
as a dividend payable solely in shares of any class of the capital stock of this
corporation. In calculating the amount of any Dividend payable on the Common
Stock, such Dividend shall be rounded to the closest one quarter of one cent
($.0025).
2. The holders of Common Stock shall not be entitled to any vote
on any matters except: (a) as may be required by law; and (b) that the Common
Stock shall have one vote for each share for the election and removal of the
Common Directors voting as a separate class. The "Common Directors" shall be
that number of Directors which constitutes twenty five percent (25%) of the
authorized number of members of the Board of Directors, including, for all
purposes, the Common Directors and any Directors which are entitled to be
elected by the holders of any Preferred Stock. If twenty five percent (25%) of
the authorized number of Directors is not a whole number, then the number of
Common Directors shall be rounded to the closest whole number of Directors, but
not less than one (1). In determining the closest whole number, any number which
includes a fraction equal to .5 shall be deemed to be the next highest whole
number.
3. The holders of Class A Common Stock shall be entitled to one
vote for each share of Class A Common Stock on all matters except the election
of Common Directors.
4. In case of voluntary or involuntary liquidation, dissolution
or winding up of the corporation, the holders of Common Stock shall be entitled
to receive out of the assets of the corporation in money or money's worth the
sum of Seven and 50/100 Dollars ($7.50) per share (the "First Common Payment"),
subject to adjustment in the event of any subdivisions, combinations, stock
splits or stock dividends involving shares of the Common Stock, before any of
such assets shall be paid or distributed to holders of Class A Common Stock, and
if the assets of the corporation shall be insufficient to pay the holders of all
of the Common Stock then outstanding the entire First Common Payment, the
holders of each outstanding share of the Common Stock shall share ratably in
such assets in proportion to the amounts which would be payable with respect to
Common Stock if the First Common Payment was paid in full.
5. After payment in full of the First Common Payment, the holders
of Class A Common Stock shall be entitled to receive out of the remaining assets
of the corporation in money or money's worth the sum of Seven and 50/100 Dollars
($7.50) per
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share (the "Second Common Payment"), subject to adjustment in the event of any
subdivisions, combinations, stock splits or stock dividends involving shares of
the Class A Common Stock, before any of such remaining assets shall be paid or
distributed to holders of the Common Stock, and if the remaining assets of the
corporation shall be insufficient to pay the holders of all of the Class A
Common Stock then outstanding the entire Second Common Payment, the holders of
each outstanding share of the Class A Common Stock shall share ratably in such
assets in proportion to the amounts which would be payable with respect to Class
A Common Stock if the Second Common Payment was paid in full.
6. After payment in full of the First Common Payment and the
Second Common Payment, any further payments on the liquidation, dissolution or
winding up of the business of the corporation shall be on an equal basis as to
all of the Common Shares then outstanding.
7. Except as to the matters expressly set forth above, the Class
A Common Stock and the Common Stock shall be identical in all respects.
8. No holders of Common Shares shall have a preemptive right to
acquire unissued shares of stock of the corporation or securities convertible
into such shares or carrying a right to subscribe to or acquire such shares.
9. The rights of the Common Shares under this Section BB of this
Third Article of these Restated Articles of Incorporation are subject to the
provisions of Section CC below concerning the Preferred Stock.
10. Shares of Class A Common Stock shall be convertible into
shares of Common Stock as provided below:
a. Each shares of Class A Common Stock may at any time or
from time to time, at the option of the respective holder thereof, be
converted into one (1) fully paid and nonassessable share of Common Stock.
Such conversion right shall be exercised by the surrender of the
certificate representing such share of Class A Common Stock to be converted
to the corporation at any time during normal business hours at the
principal executive offices of the corporation (to the attention of the
Secretary of the corporation), or if an agent for the registration or
transfer of shares of Class A Common Stock is then duly appointed and
acting (said agent being referred to in this Article as the "Transfer
Agent"), then at the office of the Transfer Agent, accompanied by a written
notice of the election by the holder thereof to convert, and (if so
required by the corporation or the Transfer Agent) by instruments of
transfer, in each case in form satisfactory to the corporation and to the
Transfer Agent, duly executed by such holder or his duly authorized
attorney, and transfer tax stamps or funds therefor, if required pursuant
to Paragraph 10.e. below.
b. As promptly as practicable after the surrender for
conversion of a certificate representing shares of Class A Common Stock in
the manner provided in Paragraph 10.a. above, and the payment to the
corporation in cash of any amount
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required by the provisions of Paragraph 10.e., the corporation will deliver
or cause to be delivered at the office of the Transfer Agent to, or, if no
Transfer Agent has been appointed, upon the written order of, the holder of
such certificate a certificate or certificates representing the number of
full shares of Common Stock issuable upon such conversion, issued in such
name or names as such holder may direct. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of
the surrender of the certificate representing shares of Class A Common
Stock, and all rights of the holder of such shares as such holder shall
cease at such time, and the person or persons in whose name or names the
certificate or certificates representing the shares of Common Stock are to
be issued shall be treated for all purposes as having become the record
holder or holders of such shares of Common Stock at such time; provided,
however, that any such surrender and payment on any date when the stock
transfer records of the corporation shall be closed shall constitute the
person or persons in whose name or names the certificate or certificates
representing shares of Common Stock are to be issued as the record holder
or holders thereof for all purposes immediately prior to the close of
business on the next succeeding day on which such stock transfer records
are open.
c. No adjustments in respect of dividends shall be made upon
the conversion of any share of Class A Common Stock; provided, however,
that if a share shall be converted subsequent to the record date for the
payment of a dividend or other distribution on shares of Class A Common
Stock but prior to such payment, the registered holder of such share at the
close of business on such record date shall be entitled to receive the
dividend or other distribution payable in the amount declared per share of
Class A Common Stock on the date set for payment of such dividend or other
distribution notwithstanding the conversion thereof or the corporation's
default in payment of the dividend or distribution due on such date.
d. The corporation will at all times reserve and keep
available, solely for the purpose of issuance upon conversion of the
outstanding shares of Class A Common Stock, such number of shares of Common
Stock as shall be issuable upon the conversion of all such outstanding
shares; provided, that nothing contained herein shall be construed to
preclude the corporation from satisfying its obligations in respect of the
conversion of the outstanding shares of Class A Common Stock by delivery of
purchased shares of Common Stock which are held in the treasury of the
corporation.
e. The issuance of certificates for shares of Common Stock
upon conversion of shares of Class A Common Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that
of the holder of the share or shares of Class A Common Stock to be
converted, the person or persons requesting the issuance thereof shall pay
to the corporation the amount of any tax that may be payable in respect of
any transfer involved in such issuance or shall establish to the
satisfaction of the corporation that such tax has been paid.
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f. If at any time the number of outstanding shares of Class A
Common Stock that the Moslings (as defined below) beneficially own (as
defined below) is less than 150,000 shares, then the outstanding shares of
Class A Common Stock shall be deemed without further act on anyone's part
to be immediately and automatically converted into shares of Common Stock,
and stock certificates formerly representing outstanding shares of Class A
Common Stock shall thereupon and thereafter be deemed to represent a like
number of shares of Common Stock. For purposes hereof, "Moslings" shall
mean (a) Mr. J. Peter Mosling, Jr., (b) Stephen P. Mosling or (c) any
trustee, guardian or custodian for, or any executor, administrator or other
legal representative of the estate of, J. Peter Mosling, Jr. and/or Stephen
P. Mosling. For purposes hereof, a person shall be deemed to "beneficially
own" shares of Class A Common Stock if such person, directly or indirectly,
has or shares voting power that includes the power to vote, or to direct
the voting of, such shares.
11. From and after the effectiveness of these Restated Articles of
Incorporation, the Board of Directors of the corporation may only issue shares
of Class A Common Stock in the form of a dividend or other distribution payable
solely in shares of Class A Common Stock on or split-up of the shares of Class A
Common Stock and only to the then holders of the outstanding shares of Class A
Common Stock in conjunction with and in the same ratio as a stock dividend or
distribution on or split-up of the shares of Common Stock. Except as provided in
this Paragraph 11, the corporation shall not issue additional shares of Class A
Common Stock after the effectiveness of these Restated Articles of
Incorporation, and all shares of Class A Common Stock surrendered for conversion
in accordance with Paragraph 10 shall be retired, unless otherwise approved by a
vote of the holders of the outstanding shares of Class A Common Stock and Common
Stock, each voting as a separate class.
CC. THE PREFERRED STOCK
The Preferred Stock may be issued in series, and authority is vested
in the Board of Directors, from time to time, to establish and designate series
and to fix the variations in the powers, preferences, rights, qualifications,
limitations or restrictions of any series of the Preferred Stock, but only with
respect to:
1. the dividend rate or rates and the preferences, if any, over
any other class or series (or of any other class or series over such class or
series) with respect to dividends, the terms and conditions upon which and the
periods in respect of which dividends shall be payable, whether and upon what
conditions such dividends shall be cumulative and, if cumulative, the date or
dates from which dividends shall accumulate;
2. the price and terms and conditions on which shares may be
redeemed;
3. the amount payable upon shares in the event of voluntary or
involuntary liquidation;
4. sinking fund provisions for the redemption or purchase of
shares;
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5. the terms and conditions on which shares may be converted into
shares of any other class or series of the same or any other class of stock of
the corporation, if the shares of any series are issued with the privilege of
conversion; and
6. voting rights, if any.
Except as to the matters expressly set forth above, all series of
the Preferred Stock shall have the same preferences, limitations and relative
rights and shall rank equally, share ratably and be identical in all respects as
to all matters. All shares of any one series of the Preferred Stock shall be
alike in every particular.
DD. GENERAL
1. The number of authorized shares of any class of the capital
stock of the corporation may be increased or decreased (but not below the number
of shares of such class then outstanding) by the affirmative vote of the holders
of a majority of the outstanding Class A Common Stock.
2. Where approval by holders of shares of one or more classes of
the Common Shares or the Preferred Stock is required under the laws of the State
of Wisconsin to effect an amendment to these Restated Articles of Incorporation,
a merger or consolidation, a sale of the corporation's assets, dissolution or
otherwise, the affirmative vote of the holders of a majority of the outstanding
shares of each class entitled to vote on such matter, in class votes where
appropriate, shall be sufficient to approve the action.
3. Section 180.1150 of the Wisconsin Business Corporation Law
shall not apply to the corporation.
Fourth: The address of the registered office is:
2307 Oregon Street
Oshkosh, Wisconsin 54901
Fifth: The name of the registered agent at such address is:
Timothy M. Dempsey
Sixth: The number of directors constituting the Board of Directors
shall be such number as is fixed from time to time by the By-Laws.
Seventh: These Restated Articles of Incorporation supersede and take
the place of the heretofore existing Articles of Incorporation and Amendments
thereto.
Eighth: These articles may be amended in the manner authorized by law
at the time of amendment.
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