Exhibit 3.1
Amendments to the By-Laws of the Company
1.) Pursuant to a resolution of the Board of Directors, the By-Laws of
the Company were amended by changing the third sentence of Section 2.05 to
read as follows:
"In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any
such determination of shareholders, such date in any case to be
not more than seventy days and, in case of a meeting of
shareholders, not less than ten days prior to the date on which
the particular action, requiring such determination of
shareholders, is to be taken."
2.) Pursuant to a resolution of the Board of Directors, the By-Laws of
the Company were amended by changing the second sentence of the first
paragraph of Section 3.01 to read as follows:
"The number of directors of the corporation shall be six."
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.2
<SEQUENCE>3
<TEXT>
Exhibit 3.2
BY-LAWS
OF
HEIN-WERNER CORPORATION
(a Wisconsin corporation)
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The principal office of
the corporation shall be located in Waukesha, Wisconsin. The corporation
may have such 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
shall be held on the second Thursday in April in each year at 2:00 o'clock
P.M., or at such other time and date within thirty days before or after
said date as may be fixed by or under the authority of the Board of
Directors, for the purpose of electing directors and for the transaction
of such other business as may come before the meeting. If the day fixed
for the annual meeting shall be a legal holiday in the State of Wisconsin,
such meeting shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated herein, or
fixed as herein provided, for any annual meeting of the shareholders, or
at any adjournment thereof, the Board of Directors shall cause the
election to be held at a special meeting of the shareholders as soon
thereafter as conveniently may be.
2.02. Special Meeting. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be
called by the President or the Board of Directors or by the person
designated in the written request of the holders of not less than one-
tenth of all shares of the corporation entitled to vote at the meeting.
2.03. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Wisconsin, as the place of
meeting for any annual meeting or for any special meeting called by the
Board of Directors. A waiver of notice signed by all shareholders entitled
to vote at a meeting may designate any place, either within or without the
State of Wisconsin, as the place for the holding of such meeting. If no
designation is made, or if a special meeting may otherwise be called, the
place of meeting shall be the principal business office of the corporation
in the State of Wisconsin or such other suitable place in the county of
such principal office as may be designated by the person calling such
meeting, but any meeting may be adjourned to reconvene at any place
designated by vote of a majority of the shares represented thereat.
2.04. Notice of Meeting. Written notice stating the place, day
and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than
ten days (unless a longer period is required by law or the Restated
Articles of Incorporation) nor more than fifty days before the date of the
meeting, either personally or by mail, by or at the direction of the
President, or the Secretary, or other officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
If mailed, such notice shall be deemed to be delivered when deposited in
the United States mail, addressed to the shareholder at his address as it
appears on the stock record books of the corporation, with postage thereon
prepaid.
2.05. Closing of Transfer Books or Fixing of Record Date. For
the purpose of determining shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or shareholders
entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the Board of
Directors may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books
shall be closed for at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than seventy days and,
in case of a meeting of shareholders, not less than ten days prior to the
date on which the particular action, requiring such determination of
shareholders, is to be taken. If the stock transfer books are not closed
and no record date is fixed for the determination of shareholders entitled
to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the close of business on the
date on which notice of the meeting is mailed or on the date on which the
resolution of the Board of Directors declaring such dividend is adopted,
as the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall be applied to any adjournment thereof except where the
determination has been made through the closing of the stock transfer
books and the stated period of closing has expired.
2.06. Voting Records. The officer or agent having charge of the
stock transfer books for shares of the corporation shall, before each
meeting of shareholders, make a complete record of the shareholders
entitled to vote at such meeting, or any adjournment thereof, with the
address of and the number of shares held by each. Such record shall be
produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the
meeting for the purposes of the meeting. The original stock transfer
books shall be prima facie evidence as to who are the shareholders
entitled to examine such record or transfer books or to vote at any
meeting of shareholders. Failure to comply with the requirements of this
section shall not affect the validity of any action taken at such meeting.
2.07. Quorum. Except as otherwise provided in the Restated
Articles of Incorporation, a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting
of shareholders. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on
the subject matter shall be the act of the shareholders unless the vote of
a greater number or voting by classes is required by law or the Restated
Articles of Incorporation. Though less than a quorum of the outstanding
shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
2.08. Conduct of Meeting. The President, and in his absence, a
Vice President in the order provided under Section 4.06, and in their
absence, any person chosen by the shareholders present shall call the
meeting of the shareholders to order and shall act as chairman of the
meeting, and the Secretary of the corporation shall act as secretary of
all meetings of the shareholders, but, in the absence of the Secretary,
the presiding officer may appoint any other person to act as secretary of
the meeting.
2.09. Proxies. At all meetings of shareholders, a
shareholder entitled to vote may vote in person or by proxy appointed in
writing by the shareholder or by his duly authorized attorney in fact.
Such proxy shall be filed with the Secretary of the corporation before or
at the time of the meeting. Unless otherwise provided in the proxy, a
proxy may be revoked at any time before it is voted, either by written
notice filed with the Secretary or the acting secretary of the meeting or
by oral notice given by the shareholder to the presiding officer during
the meeting. The presence of a shareholder who has filed his proxy shall
not of itself constitute a revocation. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in
the proxy. The Board of Directors shall have the power and authority to
make rules establishing presumptions as to the validity and sufficiency of
proxies.
2.10. Voting of Shares. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders, except to the extent that the voting rights of the shares of
any class or classes are enlarged, limited or denied by the Restated
Articles of Incorporation.
2.11. 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 corporation or any other officer appointed by such
president. 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 this
corporation, given in.writing to the Secretary of this corporation,
of the designation of some other person by the board of directors or
the by-laws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares held by any
administrator, executor, guardian, conservator, trustee in
bankruptcy, receiver, or assignee for creditors may be voted by him,
either in person or by proxy, without a transfer of such shares into
his name provided that there is filed with the Secretary before or at
the time of meeting proper evidence of his incumbency and the number
of shares held. Shares standing in the name of a fiduciary may be
voted by him, 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 this corporation, given in
writing to the Secretary of this corporation, that such manner of
voting is expressly prohibited or otherwise directed by the document
creating the fiduciary relationship.
(c) Pledgees. 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
corporation is held by this corporation, shall be voted at any
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, may be voted 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
of the Corporation has received written notice or has actual
knowledge that such shareholder is a minor.
(f) Incompetents and Spendthrifts. Shares held by an
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 of the corporation has been adjudicated an incompetent or
spendthrift or 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 such
individuals if either (i) no other such individual or his legal
representative is present and claims the right to participate in the
voting of such shares or prior to the vote filed with the Secretary
of the corporation 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 of the corporation has no
actual knowledge that the survivor has been adjudicated not to be the
successor to the interests of those deceased.
2.12. Waiver of Notice by Shareholders. Whenever any notice
whatever is required to be given to any shareholder of the corporation
under the Restated Articles of Incorporation or 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 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 time and place of meeting.
2.13. Unanimous Consent without Meeting. Any action
required or permitted by the Restated Articles of Incorporation or By-laws
or any provision of law to be taken at a meeting of the shareholders, 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.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers, Classification 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 six.
At the 1978 annual meeting of shareholders, the directors of the
first class shall be elected for a term to expire at the first annual
meeting of shareholders after their election, the directors of the second
class shall be elected for a term to expire at the second annual meeting
of shareholders after their election, and the directors of the third class
shall be elected for a term to expire at the third annual meeting of
shareholders after their election. At each annual meeting of shareholders
the successors to the class of directors whose terms shall expire at the
time of such annual meeting shall be elected to hold office until the
third succeeding annual meeting of shareholders.
Each director shall hold office for the term for which he is
elected and until his successor is elected and qualified or until his
prior death, resignation or removal. A director may resign at any time by
filing his written resignation with the Secretary of the corporation.
3.02. Tenure and Qualifications. Directors shall be
shareholders of the corporation. No director will stand for re-election
as a director who has attained age 72 on or before the annual meeting of
shareholders. A director who is an officer of the corporation and who
shall retire or otherwise terminate employment as such officer shall
automatically be retired as a director of the corporation and thereafter
shall not be eligible for reelection as a director, unless his continued
service as a director is approved by the number of directors specified in
Article IX of the Restated Articles of Incorporation.
3.03. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately
after the annual meeting of share-holders, and each adjourned session
thereof. The place of such regular meeting shall be the same as the place
of the meeting of shareholders which precedes it, or such other suitable
place as may be announced at such meeting of shareholders. 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 President, Secretary
or any two directors. The person or persons calling any special meeting
of the Board of Directors 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 each meeting of the Board
of Directors (unless otherwise provided in or pursuant to Section 3.03)
shall be given to each director not less than 48 hours prior to the
meeting by giving oral, telephone or written notice to a director in
person, or by telegram of not not less than four days prior to a meeting
by delivering or mailing written notice to the business address or such
other address as a director shall have designated in writing filed with
the Secretary. 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, 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 Restated Articles of Incorporation
or 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 notice of such meeting, except where a director attends a
meeting and objects thereat to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice of waiver of notice of
such meeting.
3.06. Quorum. Except as otherwise provided by law or by the
Restated Articles of Incorporation or these By-laws, a majority of the
number of directors as provided in Section 3.01 shall constitute a quorum
for the transaction of business at any Meeting of the Board of Directors,
but a majority of the directors present (though less than such quorum) may
adjourn the meeting from time to time without further notice.
3.07. 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 Restated Articles of Incorporation or these By-
laws.
3.08. Conduct of Meetings. The President, and in his
absence, a Vice-President in the order provided under Section 4.06, and in
their absence, any director chosen by the directors present, shall call
meetings of the Board of Directors to order and shall act as chairman of
the meeting. The Secretary of the 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. If the office of any director or directors
becomes vacant for any reason, the vacancy shall be filled as provided for
in the Restated Articles of Incorporation.
3.10. Compensation. The Board of Directors, by affirmative
vote of a majority of the directors then in office, and irrespective of
any personal interest of any of its members, may establish reasonable
compensation of all directors for services to the corporation as
directors, or may delegate such authority to an appropriate committee. The
Board of Directors shall establish the compensation of the President, who
shall have the authority under Section 4.05 to establish the compensation,
exclusive of the benefits hereinafter referred to in this Section 3.10, of
the other officers, employees and agents of the corporation. The Board of
Directors also shall have authority to provide for or to delegate
authority to an appropriate committee to provide for reasonable pensions,
disability or death benefits, and other benefits or payments, to
directors, officers and employees and.to their estates, families,
dependents or beneficiaries on account of prior services rendered by such
directors, officers and employees to the corporation.
3.11. Presumption of Assent. A director of the corporation
who is present at a meeting of the Board of Directors or committee thereof
of which he is a member at which action on any corporate matter is taken
shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
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 the number of directors
as provided in Section 3.01 may designate one or more committees, each
committee to consist of three or more directors elected by the Board of
Directors, which to the extent provided in said resolution as initially
adopted, and as thereafter supplemented or amended by further resolution
adopted by a like vote, shall have and may exercise, when the Board of
Directors is not in session, the powers of the Board of Directors in the
management of the business and affairs of the corporation, except action
in respect to dividends to shareholders, election of the principal
officers or the filing of vacancies in the Board of Directors or
committees created pursuant to this section. The Board of Directors may
elect one or more of its members as alternate members of any such
committee who may take the place of any absent member or members at any
meeting of such committee, upon request by the President or upon request
by the chairman of such meeting. Each such committee shall fix its own
rules governing the conduct of its activities and shall make such reports
to the Board of Directors of its activities as the Board of Directors may
request.
3.13. Unanimous Consent Without Meeting. Any action
required or permitted by the Restated 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.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation
shall be a President, 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. 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 of the shareholders. If the
election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as conveniently may be. Each officer
shall hold office until his successor shall have been duly elected or
until his prior death, resignation or removal.
4.03. Removal. Any officer or agent may be removed by the
Board of Directors whenever in its judgment the best interests 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.
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. President. The President shall be the principal
executive offIcer of the corporation and, subject to the control of the
Board of Directors, shall in general supervise and control all of the
business and affairs of the corporation. He shall, when present, preside
at all meetings of the shareholders and of the Board of Directors. He
shall have authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint such employees and agents of the
corporation as he shall deem necessary, to prescribe their powers, and
duties and to delegate authority to them. The President shall establish
the compensation, exclusive of certain benefits provided by the Board of
Directors under Section 3.10, of the other officers, employees and agents
of the corporation. Such employees and agents shall hold office at the
discretion of the President. He shall have authority to sign, execute and
acknowledge, on behalf of the corporation, all deeds, mortgages, bonds,
stock certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution
of the Board of Directors; and, except as otherwise provided by law or the
Board of Directors, he may authorize any Vice President or other officer
or agent of the corporation to assign, execute and acknowledge such
documents or instruments in his place and stead. In general he shall
perform all duties incident to the office of president and such other
duties as may be prescribed by the Board of Directors from time to time.
4.06. The Vice Presidents. In the absence of the President or
in the event of his death, inability or refusal to act, or in the event
for any reason it shall be impracticable for the President to act
personally, the Vice-President (or in the event there be more than one
Vice-President, the Vice-Presidents in the order designated by the Board
of Directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice-President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the
corporation; and shall perform such other duties and have such authority
as from time to time may be delegated or assigned to him by the President
or by the Board of Directors. The execution of any instrument of the
corporation by any Vice-President shall be conclusive evidence, as to
third parties, of his authority to act in the stead of the President.
4.07. The Secretary. The Secretary shall: (a) keep the
minutes of 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 corportion 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 address 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 by the President or by the Board of Directors.
4.08. The Treasurer. The Treasurer shall: (a) have charge
and custody of and be responsible for all funds and securities of the
corporation; (b) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever, and deposit all such moneys in
the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of
Section 5.04; and (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.
4.09. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors may from time to time authorize. The Assistant
Secretaries may sign with the President or a Vice-President certificates
for shares of the corporation the issuance of which shall have been
authorized by-a resolution of the Board of Directors. The Assistant
Treasurers shall respectively, if required by the Board of Directors, give
bonds for the faithful discharge of their duties in such sums and with
such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such
duties and have such authority as shall from time to time be delegated or
assigned to them by the Secretary or the Treasurer, respectively, or by
the President or the Board of Directors.
4.10. Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint any person to act as assistant
to any officer, or as agent for the corporation in his stead, or to
perform the duties of such officer whenever for any reason it is
impracticable for such officer to act personally, and such assistant or
acting officer or other agent so appointed by the Board of Directors 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.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AID DEPOSITS; SPECIAL CORPORATE ACTS
5.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the name of and on behalf of the
corporation, and such authorization may be general or confined to specific
instances. In the absence of other designation, all deeds, mortgages and
instruments of assignment or pledge made by the corporation shall be
executed in the name of the corporation by the President or one of the
Vice-Presidents and by the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer; the Secretary or an Assistant
Secretary, when necessary or required, shall affix the corporate seal
thereto; and when so executed no other party to such instrument or any
third party shall be required to make any inquiry into the authority of
the signing officer or officers.
5.02. Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of such
indebtedness shall. be issued in its name unless authorized by or under
the authority or 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 Directors, (a) any shares
or other securities issued by any other corporation and owned or
controlled by this corporation may be voted at any meeting of security
holders of such other corporation by the President of this corporation if
he be present, or in his absence by any Vice President of this corporation
who may be present, and (b) whenever, in the judgment of the President, or
on his absence by any Vice President, it is desirable for this corporation
to execute a proxy or written consent in respect to any shares or other
securities issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this corporation by
the President or one of the Vice Presidents of this corporation without
necessity of any authorization by the Board of Directors, affixation of
corporate seal or countersignature or attestation by another officer. Any
person or persons designated in the manner above stated as the proxy or
proxies of this corporation shall have full right, power and authority to
vote the shares or other securities issued by such other corporation and
owned by this corporation the same as such shares or other securities
might be voted by this corporation.
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. Such certificates shall be signed
by the President or a Vice-President and by the Secretary or an Assistant
Secretary. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date
of issue, shall be entered on the stock transfer books of the corporation.
All certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the corporation
on any certificate for snares 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.
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 shares has been lost, destroyed or
wrongfully taken, a new certificate shall be issued in place thereof if
the owner (a) so requests before the corporation has notice that such
shares have been acquired by a bona fide purchaser, and (b) files with the
corporation a sufficient indemnity bond, and (c) satisfies such other
reasonable requirements as 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, in 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. SEAL
7.01. The Board of Directors shall provide a corporate seal which
shall be circular in form and shall have inscribed thereon the name of the
corporation and the state of incorporation and the words, "Corporate
Seal".
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in this
Article VIII and not otherwise hereinafter defined in this Section 8.01
shall have the meaning set forth in Section 180.042 of the Statute. The
following capitalized terms (including any plural forms thereof) used in
this Article VIII shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any corporation,
partnership, joint venture, employee benefit plan, trust or other
enterprise that directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the
corporation.
(b) "Authority" shall mean the entity selected by the Director or
Officer to determine his or her right to indemnification pursuant to
Section 8.04.
(c) "Board" shall mean the entire then elected and serving board of
directors of the corporation, including all members thereof who are
parties to the subject proceeding or any related proceeding.
(d) "Breach of Duty" shall mean the Director or Officer breached or
failed to perform his or her duties to the corporation and his or her
breach of or failure to perform those duties is determined, in accordance
with Section 8.04, to constitute misconduct under Section 180.044(2) (a)
l, 2, 3 or 4 of this 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 VIII, it shall be
conclusively presumed that any Director or Officer serving as a director,
officer, partner, trustee, member of any governing or decision-making
committee, employee or agent of an Affiliate shall be so serving to the
request of the corporation.
(g) "Disinterested Quorum" shall mean a quorum of the Board who are
not parties to the subject proceeding or any related proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII the term "Party" shall
also include any Director or Officer who is or was witness in a preceeding
at a time when he or she has not otherwise been formally named a party
thereto.
(i) "Proceeding" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII, 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 such Proceeding is authorized by a majority vote
of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.042 through 180.059,
inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the
Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the
extent such amendment permits or requires the corporation to provide
broader indemnification rights than the Statute permitted or required the
corporation to provide prior to such amendment.
8.02. Mandatory Indemnification. To the fullest extent permitted
or required by the Statute, the corporation shall indemnify a Director or
Officer against all liabilities incurred by or on behalf of such Director
or Officer in connection with a proceeding in which the Director or
Officer is a party because he or she is a Director or Officer.
8.03. Procedure Requirements.
(a) A Director or Officer who seeks indemnification under Section
8.02 shall make a written request therefor to the corporation. Subject to
Section 8.03(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 8.05).
(b) No indemnification shall be required to be paid by the
corporation pursuant to Section 8.02 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 8.03(b), the
Board shall immediately authorize by resolution that an Authority, as
provided in Section 8.04, determine whether the Director's or Officer's
conduct constituted a Breach of Duty and, therefore, whether
indemnification should be denied hereunder.
(d) 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 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 determined that
the Director or Officer did not engage in misconduct constituting a Breach
of Duty.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a Director's
or Officer's right to indemnification pursuant to Section 8.03, then the
Director or Officer requesting indemnification shall have the absolute
discretionary authority to select one of the following as such Authority.
(i) An independent legal counsel; provided, that such counsel
shall be mutually selected by such Director or Officer and by a majority
vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be
obtained, then by a majority vote of the Board.
(ii) A panel of three arbitrators selected from the panels of
arbitrators of the American Arbitration Association in Milwaukee
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, than by a majority vote of the Board, and the third arbitrator
shall be selected by the two previously selected arbitrators; and (B) in
all other respects, such panel shall be governed by the American
Arbitration Association's then existing. Commercial Arbitration Rules; or
(iii) A court pursuant to and in accordance with Section 180.051
of the Statute.
(b) In any such determination by the selected Authority there shall
exist a rebuttable presumption that the Director's or Officer's conduct
did not constitute a Breach of Duty and that indemnification against the
requested amount of Liabilities is required. The burden of rebutting such
a presumption by clear and convincing evidence shall be on the Corporation
or such other party asserting that such indemnification should not be
allowed.
(c) The Authority shall make its determination within 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
8.05), 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 as to 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 ask 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 8.04 by either the corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the corporation.
8.05. Mandatory Allowance of Expense.
(a) The corporation shall pay or reimburse, 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 8.05 if it is ultimately determined by an Authority that he or she
is not entitled to be indemnified by the corporation for such Expenses
pursuant to this Section 8.04.
(b) If the Director or Officer must repay any previously advanced
Expenses pursuant to this Section 8.05, such Director or Officer shall not
be required to pay interest on such amounts.
8.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The corporation shall 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 Board may, in its sole and absolute discretion as it deems
appropriate, pursuant to a majority vote thereof, indemnify against
Liabilities incurred by, and/or provide for the allowance of reasonable
Expenses of, an authorized employee or agent of the corporation acting
within the scope of his or her duties as such and who is not otherwise a
Director or Officer.
8.07. Insurance. The corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or
was an authorized employee or 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 VIII.
8.08. Notice to the Corporation. A Director or Officer 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
or Officer hereunder unless the corporation shall have been irreparably
prejudiced by such failure (as determined by an Authority).
8.09. Severability. If any provision of this Article VIII shall
be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article VIII contravene
public policy, this Article VIII 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.
8.10. Nonexclusivity, of Article VIII. The rights of a Director
or Officer (or any other person) granted under this Article VIII shall not
be deemed exclusive of any other rights to indemnification against
Liabilities or advancement of Expenses which the Director or Officer (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 VIII shall be deemed to limit the corporation's obligations
to indemnify a Director or Officer under the Statute.
8.11. ContractuaL Nature of Article VIII: Repeal or Limitation of
Rights. This Article VIII shall be deemed to be a contract between the
corporation and each Director and Officer and any repeal or other
limitation of this Article VIII 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 VIII with regard to acts,
omissions or events arising prior to such repeal or limitation.
ARTICLE IX. AMENDMENTS
9.01. Except as otherwise provided in the Restated Articles of
Incorporation, these By-laws may be altered, amended or repealed and new
By-laws may be adopted by the shareholders by the affirmative vote of a
majority of the shares present or represented at any annual or special
meeting of the shareholders or by the affirmative vote of a majority of
the entire number of directors authorized, at any general or special
meeting of such Board of Directors.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.5
<SEQUENCE>4
<TEXT>
Exhibit 10.5
OPTION PURCHASE AGREEMENT
This OPTION PURCHASE AGREEMENT dated effective as of December
30, 1997 by and between Hein-Werner Corporation, a Wisconsin corporation
(the "Company") and Massachusetts Mutual Life Insurance Company, a
Massachusetts corporation, MassMutual Participation Investors and
MassMutual Corporate Investors (collectively the "Seller"),
WITNESSETH
WHEREAS, the Seller is the holder of certain options entitling
the holder thereof to purchase a total of 752,478 duly authorized, validly
issued and fully paid shares of the Company's common stock, at a purchase
price of $5.98 per share and represented by certain Hein-Werner
Corporation Certificates dated as of September 3, 1996 and May 30, 1997
(the "Options"), and
WHEREAS, the Company desires to acquire the Options and the
Seller desires to sell the Options in accordance with the terms,
conditions and provisions set forth herein.
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth herein, and other fair and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties agree as follows:
1. Purchase and Sale of the Options.
Terms. Subject to the terms and conditions of this Agreement,
the Seller hereby sells the Options to the Company, and the Company hereby
purchases the Options from the Seller, for an aggregate purchase price of
$1,000,000 (One Million Dollars). Payment of the aggregate purchase price
shall be made by the Company in immediately available funds and the Seller
will thereafter promptly deliver the Options to the Company duly endorsed
in form to be transferred to the Company. Such payment and delivery shall
occur as soon as possible, but in no event later than January 30, 1998.
2. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Company as follows:
(a) Corporate Organization and Authority. The Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts, with corporate power to own
its properties and to conduct its business as now conducted. The Seller
has full legal right, power and authority to enter into and perform this
Agreement.
(b) Authorization. The execution and delivery of this
Agreement by the Seller and the consummation by Seller of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of the Seller.
(c) Title. The Seller has good and marketable title to the
Options, with full power to deliver the Options hereunder. Upon payment
for the Options pursuant to this Agreement, the Company will receive good
and marketable title to the Options, free and clear of all liens,
encumbrances, claims, security interests and defects.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Seller as follows:
(a) Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Wisconsin, with corporate power to own its properties and to
conduct its business as now conducted. The Company has full legal right,
power and authority to enter into and perform this Agreement.
(b) Authorization. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement
constitutes a legal, valid and binding agreement of the Company.
(c) No Conflicts. Neither the execution and delivery of this
Agreement by the Company, nor the consummation of the transactions
contemplated hereby, will violate or conflict with (i) any provisions of
the Certificate of Incorporation or Bylaws of the Company, (ii) any
agreement or instrument to which the Company is a party or by which the
Company or any of its assets or properties are subject or (iii) any law,
rule, regulation, writ, judgment, injunction, decree, determination, award
or other order of any court, government, government agency or
instrumentality, domestic or foreign, binding upon the Company.
4. Price Adjustment Event. If at any time prior to January 20,
1999, any Price Adjustment Event (as hereinafter defined) occurs or an
agreement in principle concerning the material terms of a Price Adjustment
Event is reached, then the Company shall immediately notify the Seller.
Contemporaneously with the consummation of the Price Adjustment Event, the
Company shall pay to the Seller an amount equal to 752,478 times the
excess, if any, of (i) the per share purchase price determined as of the
date upon which such Price Adjustment Event is consummated and paid in
connection with the Price Adjustment Event, over (ii) $7.31 per share.
All computations made pursuant to this section and paid to Seller shall be
made in writing and shall be satisfactory to Seller.
For purposes herein, Price Adjustment Event shall mean any
Change of Control of the Company. "Change of Control" shall mean and
shall be deemed to have occurred if at any time for whatever reason any
Person together with "affiliates" and "associates" of such Person, within
the meaning of Rule 12b-2 of the Commission under the Exchange Act, shall
acquire control or beneficial ownership (including beneficial ownership
resulting from the formation of a "group" within the meaning of Rule 13d-5
of the Commission under the Exchange Act) of more than 51% of the shares
of any class of voting stock of the Company.
5. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated. It is hereby stipulated and declared to be the intention of
the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which may be
hereafter declared invalid, void or unenforceable.
(b) Expenses. Each party shall bear its own expenses and
costs for any and all transactions contemplated by this Agreement.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by and against
the successors and assigns of the parties hereto.
(d) Amendments. This Agreement embodies all representations,
warranties and agreements of the parties hereto, supersedes any prior
agreement and the understanding between the parties with respect to the
subject matter of this Agreement. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by both the parties hereto. However, either
party may waive any condition to the obligation of the other party
hereunder.
(e) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given, if given) by delivery, by
facsimile transmission or by mail (registered or certified mail, postage
prepaid, return receipt requested) to the respective parties as follows:
If to the Company:
Hein-Werner Corporation
2120 Pewaukee Road
Waukesha, Wisconsin 53188
Attention: J.L. Dindorf, President and
C.E.O.
If to the Seller:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111-0001
Attention: Roger W. Crandall
or at such other address as either party may have furnished to the other
in writing in accordance herewith, except that notices of change of
address shall only be effective upon receipt.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive law of the Commonwealth of
Massachusetts without giving effect to the principles of conflict of laws
thereof.
(g) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, HEIN-WERNER CORPORATION and MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY have caused this Agreement to be duly
executed as of the day and year first above written.
HEIN-WERNER CORPORATION
By:/s/ Joseph L. Dindorf
Name: Joseph L. Dindorf
Title: President and
Chief Executive Officer
Seller:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, MassMutual
Participation Investors and
MassMutual Corporate Investors
By:/s/ Charles C. McCobb
Name: Charles C. McCobb
Title: Managing Director
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-23
<SEQUENCE>5
<TEXT>
Exhibit 23
Consent of KPMG Peat Marwick LLP
The Board of Directors
Hein-Werner Corporation:
We consent to incorporation by reference in the registration statement
(Registration No. 333-48633) on Form S-8 of Hein-Werner Corporation of our
report dated February 13, 1998, relating to the consolidated balance
sheets of Hein-Werner Corporation and subsidiaries as of December 31, 1997
and 1996, and the related consolidated statements of operations and cash
flows for each of the years in the three-year period ended December 31,
1997, and our report dated February 13, 1998, relating to the financial
statement schedule for each of the years in the three-year period ended
December 31, 1997 which reports appear in the December 31, 1997 Annual
Report on Form 10-K of Hein-Werner Corporation.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Milwaukee, Wisconsin
March 31, 1998
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-27
<SEQUENCE>6
<TEXT>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE CONSOLIDATED BALANCE SHEETS AS OF DECEMBER 31, 1997, THE
CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31,
1997; AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER>1,000
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 9,696
<SECURITIES> 0
<RECEIVABLES> 13,750
<ALLOWANCES> 1,570
<INVENTORY> 9,876
<CURRENT-ASSETS> 33,386
<PP&E> 7,529
<DEPRECIATION> 4,729
<TOTAL-ASSETS> 37,348
<CURRENT-LIABILITIES> 12,885
<BONDS> 0
<COMMON> 2,771
<PREFERRED-MANDATORY> 0
<PREFERRED> 0
<OTHER-SE> 19,331
<TOTAL-LIABILITY-AND-EQUITY> 37,348
<SALES> 39,037
<TOTAL-REVENUES> 39,037
<CGS> 20,710
<TOTAL-COSTS> 37,228
<OTHER-EXPENSES> 80
<LOSS-PROVISION> 265
<INTEREST-EXPENSE> 95
<INCOME-PRETAX> 1,634
<INCOME-TAX> 297
<INCOME-CONTINUING> 1,337
<DISCONTINUED> 4,962
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,299
<EPS-PRIMARY> 2.17
<EPS-DILUTED> 1.96