Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 10-Q

 

 

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2010

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission File Number: 001-32401

 

 

MANITEX INTERNATIONAL, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Michigan   42-1628978

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification Number)

9725 Industrial Drive, Bridgeview, Illinois 60455

(Address of Principal Executive Offices)

(Zip Code)

(708) 430-7500

(Registrant’s Telephone Number, Including Area Code)

7402 W. 100 th Place, Bridgeview, Illinois 60455

(Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   ¨     No     ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   ¨    Smaller reporting company   x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.):    Yes   ¨     No   x

The number of shares of the registrant’s common stock, no par value, outstanding as of August 12, 2010 was 11,372,467

 

 

 


Table of Contents

MANITEX INTERNATIONAL, INC.

FORM 10-Q INDEX

TABLE OF CONTENTS

 

PART I: FINANCIAL INFORMATION

  
  I TEM  1:    F INANCIAL S TATEMENTS   
    

Consolidated Balance Sheets as of June 30, 2010 (unaudited) and December 31, 2009

   3
    

Consolidated Statements of Operations (unaudited) for the Three and Six Month Periods Ended June 30, 2010 and 2009

   4
    

Consolidated Statements of Cash Flows (unaudited) for the Six Month Periods Ended June 30, 2010 and 2009

   5
    

Notes to Consolidated Financial Statements (unaudited)

   6
  I TEM  2:    M ANAGEMENT S D ISCUSSION A ND A NALYSIS O F F INANCIAL C ONDITION A ND R ESULTS O F O PERATIONS    25
  I TEM  3:    Q UANTITATIVE A ND Q UALITATIVE D ISCLOSURES A BOUT M ARKET R ISK    37
  I TEM  4:    C ONTROLS A ND P ROCEDURES    38

PART II: OTHER INFORMATION

  
  I TEM  1:    L EGAL P ROCEEDINGS    38
  I TEM  1A:    R ISK F ACTORS    38
  I TEM  2:    U NREGISTERED S ALE O F E QUITY S ECURITIES A ND U SE O F P ROCEEDS    39
  I TEM  3:    D EFAULTS U PON S ENIOR S ECURITIES    39
  I TEM  4:    (R EMOVED A ND R ESERVED )    39
  I TEM  5:    O THER I NFORMATION    39
  I TEM  6:    E XHIBITS    39

 

2


Table of Contents

PART 1 – FINANCIAL INFORMATION

Item 1—Financial Statements

MANITEX INTERNATIONAL INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEET

(In thousands, except for per share amounts)

 

     June 30, 2010     December 31, 2009  
     Unaudited        
ASSETS     

Current assets

    

Cash

   $ 1,485      $ 287   

Trade receivables (net of allowances of $122 and $76 at June 30, 2010 and December 31, 2009)

     14,792        10,969   

Other receivables

     256        49   

Inventory (net of allowances of $195 at June 30, 2010 and December 31, 2009)

     26,610        27,277   

Deferred tax asset

     680        673   

Prepaid expense and other

     1,032        892   
                

Total current assets

     44,855        40,147   

Total fixed assets (net)

     11,053        11,804   
                

Intangible assets (net)

     21,378        22,401   

Deferred tax asset

     5,796        5,796   

Goodwill

     14,452        14,452   

Other long-term assets

     68        85   
                

Total assets

   $ 97,602      $ 94,685   
                
LIABILITIES AND SHAREHOLDERS’ EQUITY     

Current liabilities

    

Notes payable—short term

   $ 2,565      $ 2,624   

Current portion of capital lease obligations

     547        520   

Accounts payable

     9,011        8,565   

Accounts payable related parties

     334        618   

Accrued expenses

     2,865        2,145   

Other current liabilities

     257        97   
                

Total current liabilities

     15,579        14,569   

Long-term liabilities

    

Revolving term credit facilities

     19,287        16,788   

Deferred tax liability

     5,952        5,952   

Notes payable

     7,585        8,323   

Capital lease obligations

     4,971        5,256   

Deferred gain on sale of building

     2,979        3,169   

Other long-term liabilities

     200        200   
                

Total long-term liabilities

     40,974        39,688   
                

Total liabilities

     56,553        54,257   
                

Commitments and contingencies

    

Shareholders’ equity

    

Preferred Stock—Authorized 150,000 shares, no shares issued or outstanding June 30, 2010 and December 31, 2009

     —          —     

Common Stock—no par value, Authorized, 20,000,000 shares authorized Issued
and outstanding, 11,372,467 and 11,160,455 at June 30, 2010 and
December 31, 2009, respectively

     46,814        46,375   

Warrants

     1,788        1,788   

Paid in capital

     104        93   

Accumulated deficit

     (7,737     (8,257

Accumulated other comprehensive income

     80        429   
                

Total shareholders’ equity

     41,049        40,428   
                

Total liabilities and shareholders’ equity

   $ 97,602      $ 94,685   
                

The accompanying notes are an integral part of these financial statements

 

3


Table of Contents

MANITEX INTERNATIONAL, INC.

CONSOLIDATED STATEMENT OF OPERATIONS

(In thousands, except for per share amounts)

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2010     2009     2010     2009  
     Unaudited     Unaudited     Unaudited     Unaudited  

Net revenues

   $ 19,502      $ 11,848      $ 41,472      $ 25,890   

Cost of Sales

     14,895        9,371        31,653        20,385   
                                

Gross profit

     4,607        2,477        9,819        5,505   

Operating expenses

        

Research and development costs

     282        118        559        239   

Selling, general and administrative expenses, including corporate expenses of $572 and $471 for the three months and $1,316 and $988 for the six months ended June 30, 2010 and 2009, respectively

     3,294        2,306        7,133        4,599   

Restructuring expenses

     82        22        135        153   
                                

Total operating expenses

     3,658        2,446        7,827        4,991   
                                

Operating income

     949        31        1,992        514   

Other income (expense)

        

Interest expense

     (617     (366     (1,229     (769

Foreign currency transaction (losses) gains

     (29     66        (139     56   

Other income

     10        1        154        2   
                                

Total other expense

     (636     (299     (1,214     (711
                                

Income (loss) before income taxes

     313        (268     778        (197

Income tax (benefit)

     100        (151     258        (141
                                

Net income (loss)

   $ 213      $ (117   $ 520      $ (56
                                

Earnings (loss) Per Share

        

Basic

   $ 0.02      $ (0.01   $ 0.05      $ (0.01

Diluted

   $ 0.02      $ (0.01   $ 0.05      $ (0.01 )

Weighted average common share outstanding

        

Basic

     11,371,956        10,836,132        11,344,541        10,786,703   

Diluted

     11,392,759        10,836,132        11,365,641        10,786,703   

The accompanying notes are an integral part of these financial statements.

 

4


Table of Contents

MANITEX INTERNATIONAL, INC.

CONSOLIDATED STATEMENT OF CASH FLOWS

(In thousands)

 

     Six Months Ended
June 30,
 
     2010     2009  
     Unaudited     Unaudited  

Cash flows from operating activities:

    

Net income (loss)

   $ 520      $ (56

Adjustments to reconcile net income (loss) to cash provided by (used) for operating activities:

    

Depreciation and amortization

     1,563        1,122   

Increase (decrease) in allowances for doubtful accounts

     47        (32

Gain on disposal of fixed assets

     (39     —     

Deferred income taxes

     (8     (84

Inventory reserves

     (1     40   

Stock based deferred compensation

     68        52   

Reserve for uncertain tax positions

     —          (30

Changes in operating assets and liabilities:

    

(Increase) decrease in accounts receivable

     (4,148     8,892   

(Increase) decrease in inventory

     593        (395

(Increase) decrease in prepaid expenses

     (139     (359

(Increase) decrease in other assets

     17     

Increase (decrease) in accounts payable

     177        (5,172

Increase (decrease) in accrued expense

     745        (1,060

Increase (decrease) in other current liabilities

     161        (158
                

Net cash (used) for provided by operating activities

     (444     2,760   
                

Cash flows from investing activities:

    

Purchase of equipment

     (164     (39

Proceeds from sale of equipment

     216        —     
                

Net cash provided by (used) for investing activities

     52        (39
                

Cash flows from financing activities:

    

Borrowing on revolving credit facility

     3,269        241   

Payment on revolving credit facility

     (725     (2,920

Shares repurchased for income tax withholdings on share-based compensation

     (18     —     

Note payments (1)

     (1,351     (1,008

New borrowing

     955        894   

Payment on capital lease obligations

     (258     (134
                

Net cash provided by (used) for financing activities

     1,872        (2,927
                

Effect of exchange rate change on cash

     (282     (122

Net increase (decrease) in cash and cash equivalents

     1,480        (206

Cash and cash equivalents at the beginning of the year

     287        425   
                

Cash and cash equivalents at end of period

   $ 1,485      $ 97   
                

 

(1) On March 1, 2010 and 2009, the Company issued 64,655 and 147,059 shares of its common stock to Terex Corporation, in lieu of $150 of the principal payment on the Term Note that was due on March 1, 2010 and 2009. These transactions are non-cash transactions. Accordingly, the cash flow statement excludes the impact of these transactions.
(2) On January 6, 2010, the Company issued 130,890 shares of common stock to settle a promissory note issued on December 31, 2009 in connection with the Load King acquisition. The note was executed to ensure the delivery to the Seller of 130,890 shares of the Company’s Common Stock as provided for in the Purchase Agreement. This transaction is a non-cash transaction. Accordingly, the cash flow statement excludes the impact of this transaction.

The accompanying notes are an integral part of these financial statements.

 

5


Table of Contents

MANITEX INTERNATIONAL, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

(in thousands, except per share data)

Note 1. Nature of Operations

The Manitex International, Inc. (the “Company”) is a leading provider of engineered lifting solutions. The Company operates in two business segments the Lifting Equipment segment and the Equipment Distribution segment.

Lifting Equipment Segment

The Company designs, manufactures and distributes a diverse group of products that serve different functions and are used in a variety of industries. Through its Manitex subsidiary it markets a comprehensive line of boom trucks and sign cranes. Manitex’s boom trucks and crane products are primarily used for industrial projects, energy exploration and infrastructure development, including, roads, bridges and commercial construction. Our subsidiary, Badger Equipment Company, acquired on July 10, 2009, is a manufacturer of specialized rough terrain cranes and material handling products, including a newly introduced 30-ton model, the first in a new line of specialized high quality rough terrain cranes. Badger primarily serves the needs of the construction, municipality, and railroad industries. The Company acquired Badger primarily to obtain the recently developed new 30 ton Rough Terrain crane together with Badger’s long standing crane legacy and niche customer relationships.

The Manitex Liftking subsidiary sells a complete line of rough terrain forklifts; including the Liftking and Noble product lines, as well as special mission oriented vehicles, and other specialized carriers, heavy material handling transporters and steel mill equipment. Manitex Liftking’s rough terrain forklifts are used in both commercial and military applications. Specialty mission oriented vehicles and specialized carriers are designed and built to meet the Company’s unique customer needs and requirements. The Company’s specialized lifting equipment has met the particular needs of customers in various industries that include utility, ship building and steel mill industries. The Company completed the acquisition of substantially all of the assets of Schaeff Lift Truck Inc. (“Schaeff”) from GT Distribution, LLC. Schaeff, which produces a line of electric forklifts, and further expands the Lifting Equipment segment.

On December 31, 2009, our subsidiary, Manitex Load King, Inc. acquired the operating assets of Load King Trailers, an Elk Point, South Dakota-based manufacturer of specialized custom trailers and hauling systems, typically used for transporting heavy equipment. Load King trailers serves niche markets in the commercial construction, railroad, military, and equipment rental industries through a dealer network. Load King complements our existing material handling business.

Equipment Distribution Segment

The Company’s Crane & Machinery Division located in Bridgeview, Illinois, is a crane dealer that distributes Terex rough terrain and truck cranes, Fuchs material handlers, Manitex boom trucks and sky cranes. The Company’s Crane & Machinery Division provides service in its local market and also supplies repair parts for a wide variety of medium to heavy duty construction equipment sold both domestically and internationally. Our crane products are used primarily for infrastructure development and commercial constructions. Applications include road and bridge construction, general contracting, roofing, scrap handling and sign construction and maintenance.

The Company believes that in the current environment, an option to purchase previously-owned equipment is a cost effective alternative that could increase customers return on investment. In the second quarter of 2010, we created a new division, North American Equipment Exchange, (“NAEE” ) to market previously-owned construction and heavy equipment, domestic and internationally. The Division provides a wide range of used lifting and construction equipment of various ages and condition, and the Company has the capability to refurbish the equipment to the customers’ specification.

Our Crane & Machinery and NAEE divisions comprise a separate reporting segment entitled “Equipment Distribution.”

2. Basis of Presentation

The accompanying consolidated financial statements, included herein, have been prepared by the Company without audit pursuant to the rules and regulations of the United States Securities and Exchange Commission. Pursuant to these rules and regulations, certain information and footnote disclosures normally included in financial statements which are prepared in accordance with accounting principles generally accepted in the United States of America have been omitted. In the opinion of management, the accompanying unaudited consolidated financial statements reflect all adjustments (consisting only of normal recurring accruals, except as otherwise disclosed) necessary for a fair presentation of the Company’s financial position as of June 30, 2010, and results of its operations and cash flows for the periods presented. The consolidated balances as of December 31, 2009 were derived from audited financial statements but do not include all disclosures required by generally accepted accounting principles. The accompanying consolidated financial statements have been prepared in accordance with accounting standards for interim financial statements and should be read in conjunction with the Company’s audited consolidated financial statements and the notes thereto for the year ended December 31, 2009. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009. The results of operations for the interim periods are not necessarily indicative of the results of operations expected for the year.

 

6


Table of Contents

Allowance for Doubtful Accounts

Accounts Receivable is reduced by an allowance for amounts that may become uncollectible in the future. The Company’s estimate for the allowance for doubtful accounts related to trade receivables includes evaluation of specific accounts where we have information that the customer may have an inability to meet its financial obligations.

Inventory Valuation Inventory consists of stock materials and equipment stated at the lower of cost (first in, first out) or market. All equipment classified as inventory is available for sale. The company records excess and obsolete inventory reserves. The estimated reserve is based upon specific identification of excess or obsolete inventories. Selling, general and administrative expenses are expensed as incurred and are not capitalized as a component of inventory.

Accrued Warranties

The Company establishes a reserve for future warranty expense at the point when revenue is recognized by the Company. The provision for estimated warranty claims, which is included in cost of sales, is based on a percentage of sales.

Litigation Claims

In determining whether liabilities should be recorded for pending litigation claims, the Company must assess the allegations and the likelihood that it will successfully defend itself. When the Company believes it is probable that it will not prevail in a particular matter, it will then make an estimate of the amount of liability based, in part, on the advice of outside legal counsel.

Comprehensive Income

“Reporting Comprehensive Income” requires reporting and displaying comprehensive income and its components. Comprehensive income includes, in addition to net earnings, other items that are reported as direct adjustments to stockholder’s equity. Currently, the comprehensive income adjustment required for the Company has two components. First is a foreign currency translation adjustment, the result of consolidating its foreign subsidiary. The second component is a derivative instrument fair market value adjustment (net of income taxes) related to forward currency contracts designated as a cash flow hedge. See Note 4 for additional details. Comprehensive income is as follows:

 

     Three months ended
June 30,
    Six months ended
June 30,
 
     2010     2009     2010     2009  

Net income (loss)

   $ 213      $ (117   $ 520      $ (56

Other comprehensive (loss) income

        

Foreign currency translation adjustments

     (302     319        (207     135   

Derivative instrument fair market value adjustment—net of income taxes

     (162     (133     (142     (133
                                

Total other comprehensive (loss) income

     (464     186        (349     2   
                                

Comprehensive (loss) income

   $ (251   $ 69      $ 171      $ (54
                                

Subsequent Events

The Company has performed a review of events subsequent to the balance sheet through August 13, 2010, the date the financial statements were issued.

3. Financial Instruments—Forward Currency Exchange Contracts

The following tables set forth the company’s financial assets and liabilities that were accounted for at fair value on a recurring basis as of June 30, 2010 and December 31, 2009 by level within the fair value hierarchy. As required by ASC 820-10, financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement.

 

7


Table of Contents

The following is summary of items that the Company measures at fair value:

 

     Fair Value at June 30, 2010
   Level 1    Level 2    Level 3    Total

Asset

           

Forward currency exchange contracts

   $ 9    $ —      $ —      $ 9
                           

Total current assets at fair value

   $ 9    $ —      $ —      $ 9
                           

Liabilities:

           

Forward currency exchange contracts

   $ 376    $ —      $ —      $ 376

Load King contingent consideration

     —        —        30    $ 30
                           

Total long-term liabilities at fair value

   $ 376    $ —      $ 30    $ 406
                           
     Fair Value at December 31, 2009
   Level 1    Level 2    Level 3    Total

Asset

           

Forward currency exchange contracts

   $ 151    $ —      $ —      $ 151
                           

Total current assets at fair value

   $ 151    $ —      $ —      $ 151
                           

Liabilities:

           

Forward currency exchange contracts

   $ 31    $ —      $ —      $ 31

Badger acquisition note (1)

   $ —      $ —      $ 550    $ 550
                           

Total current liabilities at fair value

   $ 31    $ —      $ 550    $ 581
                           

Badger acquisition note (1)

   $ —      $ —      $ 1,931    $ 1,931

Load King acquisition note (1)

   $ —      $ —      $ 2,580    $ 2,580

Load King contingent consideration (1)

   $ —      $ —      $ 30    $ 30
                           

Total long-term liabilities at fair value

   $ —      $ —      $ 4,541    $ 4,541
                           

 

(1) The fair values of these items were determined as of the dates of acquisition: July 10, 2009 and December 31, 2009 respectively. The items are not subject to recurring fair value measurement.

Fair Value Measurements

ASC 820-10 classifies the inputs used to measure fair value into the following hierarchy:

 

Level 1 -   Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities;
Level 2 -   Quoted prices in markets that are not active, or inputs which are observable, either directly or indirectly, for substantially the full term of the asset or liability; and
Level 3 -   Prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable (i.e., supported by little or no market activity).

The fair value of the forward currency contracts are determined on the last day of each reporting period using quoted prices in active markets, which are supplied to the Company by the foreign currency trading operation of its bank. Under ASC 820-10, items valued based on quoted prices in active markets are Level 1 items.

The fair value of the promissory notes were calculated to be equal to the present value of the future debt payments discounted at a market rate of return commensurate with similar debt instruments with comparable levels of risk and marketability. A rate of interest of 11% and 8% were determined to be the appropriate rates for the Badger and Load King promissory notes following an assessment of the risk inherent in the debt issues and the market rates for debts of a similar nature using corporate credit ratings criteria adjusted for the lack of public markets for these debts.

The Load King purchase agreement has a contingent consideration provision which provides for a onetime payment of $750 if net revenues are equal to or greater than $30,000 in any of the next three years, i.e., 2010, 2011 or 2012. Given the disparity between the revenue threshold and the Company’s projected financial results, it was determined that a Monte Carlo simulation analysis was appropriate to determine the fair value of contingent consideration. It was determined that the probability weighted average earn out payment is $30. Based thereon, we determined the fair value of the contingent consideration to be $30.

 

8


Table of Contents

We elected a partial deferral under the provisions of ASC 820-10 related to the measurement of fair value used when evaluating goodwill, other intangible assets and other long-lived assets for impairment and valuing assets retirement. On January 1, 2009, the company adopted the provisions that were deferred by ASC 820-10.

4. Derivatives Financial Instruments

On January 1, 2009, we adopted provisions of ASC 815-10 which requires enhanced disclosures regarding an entity’s derivative and hedging activities as provided below.

The Company’s risk management objective is to use the most efficient and effective methods available to us to minimize, eliminate, reduce or transfer the risks which are associated with fluctuation of exchange rates between the Canadian and U.S. dollar. When the Company’s Canadian subsidiary receives a significant new U.S. dollar order, management will evaluate different options that may be available to mitigate future currency exchange risks. The decision to hedge future sales is not automatic and is decided case by case. The Company will only use hedge instruments to hedge firm existing sales orders and not estimated exposure, when management determines that exchange risks exceeds desired risk tolerance levels.

The Company enters into forward currency exchange contracts in relationship such that the exchange gains and losses on the assets and liabilities denominated in other than the reporting units’ functional currency would be offset by the changes in the market value of the forward currency exchange contracts it holds. The forward currency exchange contracts that the Company has to offset existing assets and liabilities denominated in other than the reporting units’ functional currency have been determined not to be considered a hedge under ASC 815-10. The Company records at the balance sheet date the forward currency exchange contracts at its market value with any associated gain or loss being recorded in current earnings. Both realized and unrealized gains and losses related to forward currency contracts are included in current earnings and are reflected in the Statement of Operations in the other income expense section on the line titled foreign currency transaction losses. Items denominated in other than a reporting units functional currency includes U.S. denominated accounts receivables and accounts payable held by our Canadian subsidiary. Additionally, there is a note payable for CDN $600 issued in connection with the Liftking acquisition. The US dollar liability for this note is adjusted each month based on the month end exchange rate, currency gains and losses are included in income each month.

The Company entered into forward currency contracts to hedge certain future U.S. dollar sales of its Canadian Subsidiary. The decision, to hedge future sales is not automatic and is decided case by case. The forward currency contracts to hedge future sales are designated as cash flow hedges under ASC 815-10.

As required, forward currency contracts are recognized as an asset or liability at fair value on the Company’s Consolidated Balance Sheet. For derivative instruments that are designated and qualify as cash flow hedges, the effective portion of the gain or loss on the derivative is reported as a component of other comprehensive income and reclassified into earnings in the same period or periods during which the hedged transaction affects earnings (date of sale). Gains or losses on cash flow hedges when recognized into income are included in net revenues. Gains and losses on the derivative instruments representing either hedge ineffectiveness or hedge components excluded from the assessment of effectiveness are recognized in current earnings. The Company expects minimal ineffectiveness as the Company has hedged only firm sales orders and has not hedged estimated exposures. In the next twelve months, the company estimates $214 of pre-tax unrealized losses related to forward currency contract hedges to be reclassified from other comprehensive income into earnings.

At June 30, 2010, the Company had entered into a series of forward currency exchange contracts. The contracts obligate the Company to purchase approximately CDN $10,472 in total. The contracts which are in various amounts mature between July 2, 2010 and January 14, 2011. Under the contract, the Company will purchase Canadian dollars at exchange rates between .9245 and .9957. The Canadian to US dollar exchange rates was .9393 at June 30, 2010. The unrealized currency exchange asset is reported under prepaid expense and other if it is an asset or under accrued expenses if it is a liability on the balance sheet at June 30, 2010. As of June 30, 2010, the Company had the following forward currency contracts:

 

Nature of Derivative

   Amount    Type

Forward currency contract

   CDN$  5,656    Not designated as hedge instrument

Forward currency contract

   CDN$ 4,816    Cash flow hedge

 

9


Table of Contents

The following table provides the location and fair value amounts of derivative instruments that are reported in the Consolidated Balance Sheet as of June 30, 2010 and December 31, 2009:

Total derivatives NOT designated as a hedge instrument

 

          Fair Value  
Asset Derivatives   

Balance Sheet Location

   June 30,
2010
    December 31,
2009
 

Foreign currency Exchange Contract

   Prepaid expense and
other
   $ 9      $ 151   
                   
Liabilities Derivatives                  

Foreign currency Exchange Contract

   Accrued expense    $ (162   $ (31
                   

Total derivatives designated as a hedge instrument

 

          Fair Value
Liabilities Derivatives   

Balance Sheet Location

   June 30,
2010
    December 31,
2009

Foreign currency Exchange Contract

   Accrued expense    $ (214   $ —  
                 

The following tables provide the effect of derivative instruments on the Consolidated Statement of Operations for the three and six months ended June 30, 2010 and 2009:

 

Derivatives Not designated

as Hedge Instrument

  

Location of gain or (loss)

recognized

in Income Statement

   Gain or (loss)  
      Three months ended
June 30,
    Six-months ended
June 30,
 
      2010     2009     2010     2009  

Forward currency contracts

   Foreign currency transaction gains (losses)    $ (289   $ 144      $ (304   $ 55   
          Gain or (loss)  

Derivatives designated

as Hedge Instrument

  

Location of gain or (loss)

recognized

in Income Statement

   Three months ended
June 30,
    Six months ended
June 30,
 
      2010     2009     2010     2009  

Forward currency contracts

   Net revenue    $ (51   $ (76   $ (17   $ (76

The Counterparty to currency exchange forward contracts is a major financial institution with credit ratings of investment grade or better and no collateral is required. Management continues to monitor counterparty risk and believes the risk of incurring losses on derivative contracts related to credit risk is unlikely.

5. Acquisition

Badger Equipment Company

On July 10, 2009, the Company completed the acquisition of 100% of the capital stock of Badger Equipment Company, a Minnesota corporation, (“Badger”), pursuant to a Stock Purchase Agreement (the “Purchase Agreement”) with Avis Industrial Corporation, an Indiana corporation (“Avis”). Badger produces specialized rough terrain cranes and material handling products, including a newly introduced 30-ton model, the first in new line of specialized high quality rough terrain cranes. Badger primarily serves the needs of the construction, municipality, and railroad industries. The Company acquired Badger primarily to obtain the recently developed new 30 ton Rough Terrain crane together with Badger’s long standing crane legacy and niche customer relationships. These provide significant additional markets for the Company and are also strategically aligned with its existing lifting equipment segment.

During the assessment of the Badger acquisition, it became apparent that the transaction may result in a bargain purchase. Our initial view was that a favorable price had been negotiated due to there being no open market sale process due to the long standing relationship with Avis since 2000. In addition, Avis did not use any outside advisors for the transaction and needed to focus on its core (mainly automotive) businesses that were under significant pressure in the current economy. The Company engaged a valuation expert and a tax advisor to provide guidance and assistance to management which was considered and in part relied upon in completing its purchase price allocation. A physical count of the inventory and fixed assets was conducted. As required by accounting standard FASB ASC 805-30-30, a reassessment was conducted to ensure that assets and liabilities were completely identified and fairly valued which included a decision to further review the fair value of the real estate and the consideration given including the stock in the Company and the interest bearing promissory note.

 

10


Table of Contents

The fair value of the purchase consideration was $5,112 as follows:

 

     Fair Value  

Cash

   $ 40   

300,000 shares of Manitex International Inc stock

     976   

Interest-bearing promissory note

     2,440   

Capital lease obligation

     1,656   
        

Total purchase consideration

     5,112   

Less: none cash items and cash received;

  

Manitex International, Inc. common stock

     (976

Promissory note

     (2,440

Capital lease

     (1,656

Cash received in the acquisition

     (1
        

Net cash consideration paid

   $ 39   
        

Purchase Price allocation

  

Cash

   $ 1   

Inventory

     2,301   

Machinery & equipment

     698   

Land & buildings

     1,700   

Accounts receivable

     604   

Deferred taxes

     345   

Prepaid expenses

     10   

Trade names & trademarks

     600   

Unpatented technology

     810   

In-process research and development

     100   

Dealer relationships

     440   

Accounts payable

     (560

Accrued expenses

     (354

Deferred tax liability

     (683

Gain on bargain purchase

     (900
        

Net assets acquired

   $ 5,112   
        

Manitex International Inc. stock - The fair value of the stock consideration was established using the guideline public company method to establish an enterprise value for the Company at the transaction date, which resulted in a per share value of $3.25 or an aggregate value of $976 for the three hundred thousand shares. While the NASDAQ closing price was considered in our valuation of fair value, the market price of our stock is only one indicator. It has been our opinion that it is simply not a reliable indicator of the value for the Company, either now or in the past. Our conclusion is based on the fact that trading volume on our stock is very limited, the Company does not provide guidance nor is there is any significant analyst coverage. Furthermore, very modest sized trades can impact the stock price significantly because our trading volume is so low.

Interest-bearing Promissory Note - Under the terms of the Purchase Agreement, the Company promises to pay Avis the principal sum of $2,750 at an interest rate of 6.0% per annum from the date of the Transaction through July 10, 2014. The Promissory Note requires the Company to make interest only payments commencing on October 1, 2009 and continuing on the first day of each subsequent quarter thereafter. Furthermore principal payments will be paid annually, in the amount of $550 commencing on July 10, 2010 and continuing on each subsequent July 10th for the following four years. The Agreement also states that the Promissory Note is secured by all of the outstanding shares of capital stock of Badger. The fair value of the promissory note was calculated to be equal to the present value of the future debt payments discounted at a market rate of return commensurate with similar debt instruments with comparable levels of risk and marketability. A rate of interest of 11% was determined to be the appropriate rate following an assessment of the risk inherent in the debt issue and the market rate for debt of this nature using corporate credit ratings criteria adjusted for the lack of public markets for this Note. The calculated fair value was $2,440.

 

11


Table of Contents

Capital Lease obligation - The Company entered into a five year lease for the Badger premises which expires in July 2014 that provides for annual rent of $300 payable in twelve equal monthly installments. The lease has been classified as a capital lease under the provisions of ASC 840-10. The Company has an option to purchase the facility for $500 at the end of the lease by giving notice to Landlord of its intent to purchase the Facility. The fair value of this obligation was calculated by discounting the payments required under the lease by a discount factor of 6.125%, a rate that is considered to be the market rate for similar mortgage type transactions. The calculated fair value was $1,656.

Under the acquisition method of accounting, the total acquisition consideration is allocated to the assets acquired and liabilities assumed based on their fair values as of the date of the acquisition as shown below.

Cash and other tangible assets and liabilities: The tangible assets and liabilities were valued at their respective carrying values by Badger, except for certain adjustments necessary to state such amounts at their estimated fair values at the acquisition date.

Intangible assets : There are three fundamental methods applied to value intangible assets outlined in FASB ASC 820. These methods include the Cost Approach, the Market Approach, and the Income Approach. Each of these valuation approaches was considered in our estimation of value.

Trade names and trademarks and Unpatented Technology: Valued using the Relief from Royalty method, a form of both the Market Approach and the Income Approach. Because the Company has established trade names and trademarks and has developed unpatented technology, we estimated the benefit of ownership as the relief from the royalty expense that would need to be incurred in absence of ownership.

In-process research and technology and dealer relationships: Because there is a specific earnings stream that can be associated exclusively with the in-process research and development and with the dealer relationships, the Company determined the discounted cash flow method was the most appropriate methodology for valuation.

Gain on bargain purchase: In accordance with ASC 805, any excess of fair value of acquired net assets over the acquisition consideration results in a bargain purchase. Prior to recording a gain, the acquiring entity must reassess whether all acquired assets and assumed liabilities have been identified and recognized and perform re-measurements to verify that the consideration paid, assets acquired and liabilities assumed have been properly valued. The Company, together with its advisors, underwent such a reassessment, and as a result, has recorded a gain on bargain purchase of $900. In accordance with acquisition method of accounting, any resulting gain on bargain purchase was recognized in earnings on the acquisition date. The Company believes that the gain on bargain purchase resulted from the negotiation of a favorable price for Badger due to there being no open market sale process due to the long standing relationship with Avis since 2000, Avis not using any outside advisors for the transaction and the fact that Avis needed to focus on its core (mainly automotive) businesses that were under significant pressure in the current economy.

Acquisition transaction costs: The majority of acquisition transaction costs were the responsibility of the seller, Avis Industrial Corp, who paid for legal costs. Due diligence and other legal activities were performed by internal Company employees. Costs for valuation and tax services amounted to $17 and are recorded in selling, general and administration expense for the quarter ended September 30, 2009.

The results of the acquired Badger operations have been included in our consolidated statement of operations since July 10, 2009, the acquisition date. The results of Badger also form part of the segment disclosures for the Lifting Equipment segment.

Terex Load King Acquisition

On December 31, 2009, the Company completed the purchase of the assets and certain liabilities of Terex Load King Trailers, (“Load King”) an Elk Point, South Dakota-based manufacturer of specialized custom trailers and hauling systems typically used for transporting heavy equipment, pursuant to an Asset Purchase Agreement with Genie Industries, Inc., a subsidiary of Terex Corporation. Load King primarily serves the commercial construction, railroad, oilfield service, military and equipment rental industries. The Company acquired Load King primarily because of its long standing legacy niche products and customer relationships. These attributes provide significant additional markets for the Company combined with its synergy with existing material handling products within the Company’s lifting equipment segment.

During the assessment of the processing of the Load King acquisition, it became apparent that the transaction may result in a bargain purchase. This supported an initial view that a favorable price had been negotiated due to the transaction being completed with a motivated seller as Terex Corporation (Terex.) desired to restructure its operations and focus on core competencies. Additionally, although Terex employed an investment banker to solicit potential buyers, Manitex was the only bidder identified willing to consummate a transaction with terms attractive to Terex (i.e. the only bidder who was willing to purchase substantially all the assets of Load King).

 

12


Table of Contents

The Company engaged a valuation expert and a tax advisor to provide guidance and assistance to management which was considered and in part relied upon in completing its purchase price allocation. Physical assets had been reviewed and visited. As required by accounting standard FASB ASC 805-30-30, a reassessment was conducted to ensure that assets and liabilities were completely identified and fairly valued which included a further review of the fair value of consideration.

The fair value of the purchase consideration was $2,960 as follows:

 

     Fair Value  

Cash

   $ 100   

130,890 shares of Manitex International Inc stock

     250   

Interest-bearing promissory note

     2,580   

Contingent consideration

     30   
        

Total purchase consideration

     2,960   

Less: none cash items and cash received;

  

Manitex International, Inc. common stock

     (250

Promissory note

     (2,580

Contingent consideration

     (30
        

Net cash consideration paid

   $ 100   
        

Manitex International Inc. stock . The fair value of the stock consideration was determined to be $250, as the Asset Purchase Agreement contained a methodology to determine the number of shares equal to $250.

Interest-bearing Promissory Note. Per the terms of the Agreement, Manitex promised to pay Genie Industries, Inc. the principal sum of $2,750 at an interest rate of 6.0% per annum from the date of the Transaction through December 31, 2016. The Promissory Note requires Manitex to make interest payments commencing on December 31, 2009 and continuing on the last day of each subsequent quarter through and including December 31, 2016. Furthermore, principal payments equal to one-sixth of the principal sum (i.e., approximately $458) will be paid annually, commencing on December 31, 2011 and continuing on each subsequent December 31 for the following five years. The Promissory Note is secured by certain real property and machinery and equipment of Load King, located in South Dakota.

The note was recorded at its fair value on date of issuance at $2,580. The fair value of the promissory note was calculated to be equal to the present value of the future debt payments discounted at a market rate of return commensurate with similar debt instruments with comparable levels of risk and marketability. A rate of interest of 8% was determined to be the appropriate rate following an assessment of the risk inherent in the debt issue and the market rate for debt of this nature using corporate credit ratings criteria adjusted for the lack of public markets for this Note. The difference between face amount of the note and its fair value is being amortized over the life of the note, and is being charged to interest expense.

Contingent Consideration. In accordance with ASC 805, the acquirer is to recognize the acquisition date fair value of contingent consideration. The agreement has a contingent consideration provision which provides for a onetime payment of $750 if net revenues are equal to or greater than $30,000 in any of the next three years, i.e., 2010, 2011 or 2012. Given the disparity between the revenue threshold and the Company’s projected financial results, it was determined that a Monte Carlo simulation analysis was appropriate to determine the fair value of contingent consideration. It was determined that the probability weighted average earn out payment is $30. Based thereon, we determined the fair value of the contingent consideration to be $30.

Under the acquisition method of accounting, in accordance ASC 805, “Business Combinations”, the assets acquired and liabilities assumed are valued based on their estimated fair values as of the date of the acquisition as shown below.

 

Purchase Price allocation:

  

Inventory

   $ 1,841   

Machinery & equipment

     1,716   

Land & buildings

     2,610   

Accounts receivable

     464   

Prepaid expenses

     5   

Trade names & trademarks

     420   

Unpatented technology

     670   

Accounts payable

     (144

Accrued expenses

     (150

Deferred tax liability

     (1,557

Gain on bargain purchase

     (2,915
        

Net assets acquired

   $ 2,960   
        

 

13


Table of Contents

Tangible assets and liabilities: The tangible assets and liabilities were valued at their respective carrying values by Load King, except for certain adjustments necessary to state such amounts at their estimated fair values at the acquisition date. A significant fair market adjustment to land and building was made. Fair market adjustments, which were not significant, were also made to adjust machinery and equipment and inventory.

Intangible assets: There are three fundamental methods applied to value intangible assets outlined in FASB ASC 820. These methods include the Cost Approach, the Market Approach, and the Income Approach. Each of these valuation approaches was considered in our estimation of value.

Trade names and trademarks and Unpatented Technology: Valued using the Relief from Royalty method, a form of both the Market Approach and the Income Approach. Because the Company has established trade names and trademarks and has developed unpatented technology, we estimated the benefit of ownership as the relief from the royalty expense that would need to be incurred in absence of ownership.

Gain on bargain purchase: In accordance with ASC 805, any excess of fair value of acquired net assets over the acquisition consideration results in a bargain purchase. Prior to recording a gain, the acquiring entity must reassess whether all acquired assets and assumed liabilities have been identified and recognized and perform re-measurements to verify that the consideration paid, assets acquired and liabilities assumed have been properly valued. The Company, together with its advisors, underwent such a reassessment, and as a result, has recorded a gain on bargain purchase of $2,915. In accordance with acquisition method of accounting, any resulting gain on bargain purchase must be recognized in earnings on the acquisition date. The gain on bargain purchase is disclosed on a separate line in the Company’s consolidated statement of operations for year ended December 31 2009. The Company believes that the gain on bargain purchase resulted from the negotiation of a favorable price for Load King due to the transaction being completed with a motivated seller who desired to restructure its operations and focus on core competencies. Additionally, although the Seller employed an investment banker to solicit potential buyers, Manitex was the only bidder identified willing to consummate a transaction with terms attractive to Terex (i.e. the only bidder who was willing to purchase substantially all the assets of Load King).

Acquisition transaction costs: The Company incurred $54 in legal fees in connection with the Load King acquisition. Due diligence and other activities were performed by internal Company employees. Internal cost and legal fees are recorded in recorded in selling, general and administration expense in 2009. Costs for prior years audits, valuation and tax services preformed after December 31, 2009 are approximately $86 and have been recorded in the first quarter of 2010.

The results of the acquired Load King operations have been included in the Company’s consolidated statement of operations since December 31, 2009, the acquisition date. The results of Load King also form part of the segment disclosures for the Lifting Equipment segment.

Pro Forma Results

The following unaudited pro forma information assumes the acquisition of Badger Equipment Company and Terex Load King occurred on January 1, 2009. The unaudited pro forma results have been prepared for informational purposes only and do not purport to represent the results of operations that would have been had the acquisition occurred as of the date indicated, nor of future results of operations. The unaudited pro forma results for the three and six months ended June 30, 2009 are as follows (in thousands, except per share data)

 

     Three Months Ended
June 30,
2009
    Six Months Ended
June 30,
2009
 

Net revenues

   $ 14,536      $ 32,147   

Net loss

   $ (841   $ (2,290

Loss per share

    

Basic

   $ (0.07   $ (0.20

Diluted

   $ (0.07   $ (0.20

Pro Forma Adjustment Note

A Pro Forma adjustment was made to give effect to the amortization of the intangibles recorded as a result of the acquisitions, which would have resulted in $54 and $108 of additional amortization expense for the three and six months ended June 30, 2009. Pro Forma adjustments to interest expense was made to reflect interest on the promissory notes issued in connection with the acquisitions, the capital lease executed in the Badger acquisition and to eliminate interest expense for Badger debt not assumed in the transaction. The net effect was to increase interest expense by $141 and $278 for the three and six month periods ended June 30, 2009. Pro Forma adjustments were made to account for the changes in depreciation expense based on the value of fixed as determined in the purchase price allocation. The effect was to increase depreciation expense by $1 for the three months ended June 30, 2009 and to decrease depreciation expense by $6 for the six months ended June 30, 2009.

 

14


Table of Contents

Basic and diluted shares outstanding were increased by 430,890 shares for three and six months ended June 30, 2009.

In connection with the acquisitions of Badger and Load King, the Company recognized gains on bargain purchases of $3,715 and a tax benefit of $1,893. In previous filings, pro forma adjustments were made to move the gains on bargain purchases and the tax benefit to the assumed acquisition date (January1, 2009 or January 1, 2008). Subsequently, we determined that these pro forma adjusts were not required. As such, the above pro forma disclosure does not included pro forma adjustments to move the gains on bargain purchases and the tax benefit from the historic periods.

6. Net Earnings per Common Share

Basic net earnings per share is computed by dividing net income by the weighted average number of common shares outstanding for the period. Diluted earnings per share reflects the potential dilution of warrants, and restricted stock units. Details of the calculations are as follows:

 

     Three months ended
June 30,
    Six months ended
June 30,
 
     2010    2009     2010    2009  

Net Income (loss) per common share

          

Basic

   $ 213    $ (117   $ 520    $ (56

Diluted

   $ 213    $ (117   $ 520    $ (56

Earnings (loss) per share

          

Basic

   $ 0.02    $ (0.01   $ 0.05    $ (0.01

Diluted

   $ 0.02    $ (0.01   $ 0.05    $ (0.01

Weighted average common share outstanding

          

Basic

     11,371,956      10,836,132        11,344,541      10,786,703   
                              

Diluted

          

Basic

     11,371,956      10,836,132        11,344,541      10,786,703   

Dilutive effect of restricted stock units

     20,803      —          21,100      —     
                              
     11,392,759      10,836,132        11,365,641      10,786,703   
                              

Weighted average of diluted shares related to restricted stock of 7,963 and 8,109 for the three and six months ended June 30, 2009 were excluded from diluted shares as additional shares are anti-dilutive when the Company has a loss.

7. Equity

Stock Warrants

The Company accounts for warrants issued to non-employees based on the fair value on date of issuance. Certain warrants will be exercisable on a cashless basis under certain circumstances, and are callable by the Company on a cashless basis under certain circumstances. At June 30, 2010 and December 31, 2009, the Company had issued and outstanding warrants as follows:

 

Number of

Warrants

   Exercise
Price
  

Expiration Date

    
450,000    $ 4.05    November 15, 2011    Private placement
204,000    $ 4.25    November 15, 2011    Private placement
192,500    $ 4.62    November 15, 2011    Placement Agent Fee
15,000    $ 7.08    June 15, 2011    Investor Relation Service
105,000    $ 7.18    September 11, 2012    Placement Agent Fee

During the three and six months ended June 30, 2010 no warrants were exercised.

Stock Issuance

On January 6, 2010, the Company issued 130,890 shares of common stock to settle a promissory note issued on December 31, 2009 in connection with the Load King acquisition. The note was executed to ensure the delivery to the Seller of 130,890 shares of the Company’s Common Stock as provided for in the Purchase Agreement

 

15


Table of Contents

On March 1, 2010, the Company issued 64,655 shares of common stock to the Terex Corporation as the Company elected to pay $150 of the annual principal payment due March 1, 2010 in shares of the Company’s common stock. The share price for the transactions was the average closing price for the twenty trading days ending the day before the payment was due. See note 15.

The Company issued shares of common stock to employees for restricted stock units issued under the Company’s 2004 Incentive Plan, which had vested. The Company also repurchased shares from employees to satisfy employee withholding tax obligation. The shares were repurchased at the closing price on date the shares vested. The below table summarizes both stock issuance and repurchase with employees:

 

Issued Date

   Shares
Issued
   Shares
Repurchased
   Share
Net of
Repurchases
   Repurchase
Price

January 5, 2010

   1,500    490    1,010    $ 2.19

January 6, 2010

   4,000    1,309    2,691    $ 2.19

January 18, 2010

   1,000    327    673    $ 2.30

January 28, 2010

   10,500    3,429    7,071    $ 2.30

February 1, 2010

   4,000    1,308    2,692    $ 2.25

March 31, 2010

   1,320    —      1,320      —  

May 17, 2010

   1,500    490    1,010    $ 2.25
                 
   23,820    7,353    16,467   
                 

2004 Equity Incentive Plan

In 2004, the Company adopted the 2004 Equity Incentive Plan and subsequently amended and restated the plan on September 13, 2007 and May 28, 2009. The maximum number of shares of common stock reserved for issuance under the plan is 500,000 shares. The total number of shares reserved for issuance may, however, may be adjusted to reflect certain corporate transactions or changes in The Company’s capital structure. The Company’s employees and members of the board of directors who are not our employees or employees of our affiliates are eligible to participate in the plan. The plan is administered by a committee of the board comprised of members who are outside directors. The plan provides that the committee has the authority to, among other things, select plan participants, determine the type and amount of awards, determine award terms, fix all other conditions of any awards, interpret the plan and any plan awards. Under the plan, the committee can grant stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares and performance units, except Directors may not be granted stock appreciation rights, performance shares and performance units. During any calendar year, participants are limited in the number of grants they may receive under the plan. In any year, an individual may not receive options for more than 15,000 shares, stock appreciation rights with respect to more than 20,000 shares, more than 20,000 shares of restricted stock and/or an award for more than 10,000 performance shares or restricted stock units or performance units. The plan requires that the exercise price for stock options and stock appreciation rights be not less than fair market value of the Company’s common stock on date of grant.

The following table contains information regarding restricted stock units as of June 30, 2010:

 

     2010  

Outstanding on January 1,

   26,559   

Issued

   22,320   

Vested and issued

   (16,467

Vested – repurchased for income tax withholding

   (7,353

Forfeited

   (68
      

Outstanding on June 30,

   24,991   
      

The value of the restricted stock is being charged to compensation expense over the vesting period. Compensation expense includes expense related to restricted stock units of $10 and $28 for the three months and $68 and $51 for the six months ended June 30, 2010 and 2009, respectively. Additional compensation expense related to restricted stock units will be $11, and $1 for the remainder of 2010, and 2011, respectively.

8. New Accounting Pronouncements

In October 2009, the FASB issued Accounting Standards Update 2009-13, “Multiple-Deliverable Revenue Arrangements”, which amended ASC 605, “Revenue Recognition.” This guidance addresses how to determine whether an arrangement involving multiple deliverables contains more than one unit of accounting, and how to allocate the consideration to each unit of accounting. In an

 

16


Table of Contents

arrangement with multiple deliverables, the delivered item(s) shall be considered a separate unit of accounting if the delivered items have value to the customer on a stand-alone basis. Items have value on a stand-alone basis if they are sold separately by any vendor or the customer could resell the delivered items on a stand-alone basis and if the arrangement includes a general right of return relative to the delivered items, delivery or performance of the undelivered items is considered probable and substantially in the control of the vendor.

Arrangement consideration shall be allocated at the inception of the arrangement to all deliverables based on their relative selling price, except under certain circumstances such as items recorded at fair value and items not contingent upon the delivery of additional items or meeting other specified performance conditions. The selling price for each deliverable shall be determined using vendor specific objective evidence (“VSOE”) of selling price, if it exists, otherwise third-party evidence of selling price. If neither VSOE nor third-party evidence exists for a deliverable, the vendor shall use its best estimate of the selling price for that deliverable. This guidance eliminates the use of the residual value method for determining allocation of arrangement consideration and allows the use of an entity’s best estimate to determine the selling price if VSOE and third-party evidence cannot be determined. It also requires additional disclosures such as the nature of the arrangement, certain provisions within the arrangement, significant factors used to determine selling prices and the timing of revenue recognition related to the arrangement. This guidance shall be effective for fiscal years beginning on or after June 15, 2010, with early adoption permitted. We are currently evaluating the impact that adoption of this guidance will have on the determination and reporting of the Company’s financial results.

In June 2009, the FASB revised the authoritative guidance for determining the primary beneficiary of a VIE. In December 2009, the FASB issued Accounting Standards Update No. 2009-17, “Improvements to Financial Reporting by Enterprises Involved with Variable Interest Entities” (“ASU 2009-17”), which provides amendments to ASC 810 to reflect the revised guidance. The amendments in ASU 2009-17 replace the quantitative-based risks and rewards calculation for determining which reporting entity, if any, has a controlling financial interest in a VIE with an approach focused on identifying which reporting entity has the power to direct the activities of a VIE that most significantly impact the entity’s economic performance and (1) the obligation to absorb losses of the entity or (2) the right to receive benefits from the entity. The amendments in ASU 2009-17 also require additional disclosures about a reporting entity’s involvement with VIEs. ASU 2009-17 is effective for fiscal years beginning after November 15, 2009, for interim periods within that first annual reporting period and for interim and annual reporting periods thereafter. The adoption of this guidance on January 1, 2010, did not have a significant impact on the determination or reporting of our financial results.

In January 2010, the FASB issued Accounting Standards Update 2010-01, Equity (Topic 505): Accounting for Distributions to Shareholders with Components of Stock and Cash (A Consensus of the FASB Emerging Issues Task Force). This amendment to Topic 505 clarifies the stock portion of a distribution to shareholders that allows them to elect to receive cash or stock with a limit on the amount of cash that will be distributed is not a stock dividend for purposes of applying Topics 505 and 260. ASU 2010-01 is effective for interim and annual periods ending on or after December 15, 2009, and would be applied on a retrospective basis. The adoption did not have an impact on its results of operations, financial position and cash flows.

In January 2010, the FASB issued Accounting Standards Update 2010-02, Consolidation (Topic 810): Accounting and Reporting for Decreases in Ownership of a Subsidiary. This amendment to Topic 810 clarifies, but does not change, the scope of current US GAAP. It clarifies the decrease in ownership provisions of Subtopic 810-10 and removes the potential conflict between guidance in that Subtopic and asset derecognition and gain or loss recognition guidance that may exist in other US GAAP. An entity will be required to follow the amended guidance beginning in the period that it first adopts FAS 160 (now included in Subtopic 810-10). For those entities that have already adopted FAS 160, the amendments are effective at the beginning of the first interim or annual reporting period ending on or after December 15, 2009. The provisions were adopted on January 1, 2009. The adoption did not have a material impact on the Company’s Consolidated Financial Statements.

In January 2010, the FASB issued Accounting Standards Update 2010-06, Fair Value Measurements and Disclosures (Topic 820): Improving Disclosures about Fair Value Measurements. This ASU requires some new disclosures and clarifies some existing disclosure requirements about fair value measurement as set forth in Codification Subtopic 820-10. The FASB’s objective is to improve these disclosures and, thus, increase the transparency in financial reporting. Specifically, ASU2010-06 amends Codification Subtopic 820-10 to now require:

 

   

A reporting entity to disclose separately the amounts of significant transfers in and out of Level 1 and Level 2 fair value measurements and describe the reasons for the transfers; and,

 

   

In the reconciliation for fair value measurements using significant unobservable inputs, a reporting entity should present separately information about purchases, sales, issuances and settlements.

In addition, ASU2010-06 clarifies the requirements of the following existing disclosures:

 

   

For purposes of reporting fair value measurement for each class of assets and liabilities, a reporting entity needs to use judgment in determining the appropriate classes of assets and liabilities; and,

 

   

A reporting entity should provide disclosures about the valuation techniques and inputs used to measure fair value for both recurring and nonrecurring fair value measurements.

 

17


Table of Contents

ASU2010-06 is effective for interim and annual reporting periods beginning after December 15, 2009, except for the disclosures about purchases, sales, issuances and settlements in the roll forward of activity in Level 3 fair value measurements. Those disclosures are effective for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal years. Early adoption is permitted. The provisions were adopted on January 1, 2009. The adoption did not have a material impact on the Company’s Consolidated Financial Statements.

In February 2010, the FASB issued Accounting Standards Update 2010-08 , Technical Corrections to Various Topics , which provides certain clarifications made to the guidance on embedded derivatives and hedging. The Update was issued to provide special transition provisions upon application of the change in application of the topic. The Company does not believe that this update will have a material impact on its financial statements.

In February 2010, the FASB issued Accounting Standards Update 2010-09, Subsequent Events (Topic 855): Amendments to Certain Recognition and Disclosure Requirements. ASU 2010-09 removes the requirement for an SEC filer to disclose a date through which subsequent events have been evaluated in both issued and revised financial statements. Revised financial statements include financial statements revised as a result of either correction of an error or retrospective application of U.S. GAAP. The FASB also clarified that if the financial statements have been revised, then an entity that is not an SEC filer should disclose both the date that the financial statements were issued or available to be issued and the date the revised financial statements were issued or available to be issued. The FASB believes these amendments remove potential conflicts with the SEC’s literature. In addition, the amendments in the ASU requires an entity that is a conduit bond obligor for conduit debt securities that are traded in a public market to evaluate subsequent events through the date of issuance of its financial statements and must disclose such date. All of the amendments in the ASU were effective upon issuance (February 24, 2010) except for the use of the issued date for conduit debt obligors. That amendment is effective for interim or annual periods ending after June 15, 2010. The guidance, except for that related to conduit debt obligations, has been adopted and did not have a material impact on the Company’s Consolidated Financial Statements.

In March 2010, the FASB issued Accounting Standards Update 2010-11, Derivatives and Hedging (Topic 815): Scope Exception Related to Embedded Credit Derivatives. The amendments in this Update are effective for each reporting entity at the beginning of its first fiscal quarter beginning after June 15, 2010. Early adoption is permitted at the beginning of each entity’s first fiscal quarter beginning after issuance of this Update. The Company does not expect the provisions of ASU 2010-11 to have a material effect on the financial position, results of operations or cash flows of the Company.

In April 2010, the FASB issued Accounting Standards Update 2010-13, Compensation-Stock Compensation (topic 718): Effect of Denominating the Exercise Price of a Share-Based Payment Award in the Currency of the Market in Which the Underlying Equity Security Trades—a consensus of the FASB Emerging Issues Task Force. The amendments in this Update are effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2010. Earlier application is permitted. The Company does not expect the provisions of ASU 2010-13 to have a material effect on the financial position, results of operations or cash flows of the Company.

9. Inventory

The components of inventory are as follows:

 

     June 30,
2010
   December 31,
2009

Raw Materials and Purchased Parts,

   $ 20,072    $ 18,676

Work in Process

     3,130      2,267

Finished Goods

     3,408      6,334
             

Inventories, net

   $ 26,610    $ 27,277
             

 

18


Table of Contents

10. Goodwill and Intangible Assets

 

     June 30,
2010
    December 31,
2009
    Useful
lives

Patented and unpatented technology

   $ 12,136      $ 12,141      10 -17 years

Amortization

     (4,277     (3,672  

Customer relationships

     10,064        10,069      10-20 years

Amortization

     (1,852     (1.564  

Trade names and trademarks

     5,989        5,990      25 years-indefinite

Amortization

     (782     (663  

In process research and development

     100        100      Indefinite

Customer Backlog

     469        470      < 1 year

Amortization

     (469     (470  
                  

Intangible assets

     21,378        22,401     

Goodwill

     14,452        14,452     
                  

Goodwill and other intangibles

   $ 35,830      $ 36,853     
                  

Amortization expense for intangible assets was $507 and $449 for the three months and $1,015 and $897 for the six months ended June 30, 2010 and 2009, respectively.

As of June 30, 2010 and December 31, 2010, Goodwill for Lifting Equipment segment and the Equipment Distribution segment was $14,177 and $275, respectively.

13. Accounts Payable and Accrued Expenses

 

     June 30,
2010
   December 31,
2009

Accrued expenses:

     

Accrued payroll

   $ 272    $ 199

Accrued employee health

     160      247

Accrued audit and legal

     176      111

Accrued bonuses

     —        160

Accrued vacation expense

     253      341

Accrued interest

     154      146

Accrued commissions

     370      81

Accrued expenses—other

     424      136

Accrued warranty

     561      550

Accrued income taxes

     109      33

Accrued product liability

     10      110

Accrued liability on forward currency exchange contracts

     376      31
             

Total accrued expenses

   $ 2,865    $ 2,145
             

14. Accrued Warranties

The liability is established using historical warranty claim experience. Historical warranty experience is, however, reviewed by management. The current provision may be adjusted to take into account unusual or non-recurring events in the past or anticipated changes in future warranty claims. Adjustments to the initial warranty accrual are recorded if actual claim experience indicates that adjustments are necessary. Warranty reserves are reviewed to ensure critical assumptions are updated for known events that may impact the potential warranty liability.

 

     Six Months Ended  
     June 30,
2010
    June 30,
2009
 

Balance January 1,

   $ 550      $ 668   

Accrual for warranties issued during the period

     884        194   

Warranty Services provided

     (815     (530

Changes in estimate

     (63     (5

Foreign currency translation

     5        7   
                

Balance June 30,

   $ 561      $ 334   
                

 

19


Table of Contents

15. Revolving Term Credit Facilities and Debt

Revolving Credit Facility

At June 30, 2010, the Company had drawn $14,752 under a revolving credit facility. The Company is eligible to borrow up to $20,500, with interest at prime rate (prime was 3.25% at June 30, 2010) plus 1.5%. The maximum amount outstanding is limited to the sum of 85% of eligible receivables, the lesser of 55% of eligible inventory or $9,500. At June 30, 2010, the maximum the Company could borrow based on available collateral was capped at $17,033. The credit facility’s original maturity date was January 2, 2005. The maturity date was subsequently extended and the note is now due on April 1, 2012. The indebtedness is collateralized by substantially all of the Company’s assets. The facility contains customary limitations including, but not limited to, limitations on acquisitions, dividends, repurchase of the Company’s stock and capital expenditures. The agreement also requires the Company to have a minimum Tangible Effective Net Worth, as defined in the agreement, and 1.25 to 1 Debt Service Ratio, as defined in the agreement. Under the agreement, the inventory eligibility percent further decreases to 53% and 50% on December 31, 2010 and June 30, 2011.

Revolving Canadian Credit Facility

At June 30, 2010, the Company had drawn $4,319 (US) under a revolving credit agreement with a bank. The Company is eligible to borrow up to $5,500 (CDN). The maximum amount outstanding is limited to the sum of (1) 80% of eligible receivables plus (2) the lesser of 35% of eligible work-in-process inventory or CDN $500 plus (3) the lesser of 30% of eligible inventory less work-in-process inventory or CDN $3,500. At June 30, 2010, the maximum the Company could borrow based on available collateral was CDN $5,500 or US $5,166. The indebtedness is collateralized by substantially all of Manitex Liftking ULC’s assets. The Company can borrow in either U.S. or Canadian dollars. For the purposes of determining availability under the credit line, borrowings in U.S. dollars are converted to Canadian dollars based on the most favorable spot exchange rate determined by the bank to be available to it at the relevant time. Any borrowings under the facility in Canadian dollars bear interest at the Canadian prime rate (the Canadian prime was 2.50% at June 30, 2010) plus 2.0%. Any borrowings under the facility in U.S. dollars bear interest at the U.S. prime rate (prime was 3.25% at June 30, 2010) plus 1.5%. The credit facility has a maturity date of April 1, 2012.

Revolving Credit Facility—Equipment Line

At June 30, 2010, the Company had drawn $216 under a revolving credit facility with a bank. The Company is eligible to borrow up to $500, with interest at prime rate (prime was 3.25% at June 30, 2010) plus1.5%. The maximum amount outstanding is limited to of 80% of eligible equipment. The maximum the Company could borrow on June 30, 2010 was $216. The unused portion of the line is available to finance 80% of future purchase of new and used equipment. The credit facility has a maturity date of April 1, 2012

Note Payable Issued to Acquire Liftking Industries

In connection with the Liftking Industries’ acquisition, the Company has a note payable to the seller for $600 (CDN) or $564 (US). The note provides for interest at 1% over the prime rate of interest charged by Comerica Bank for Canadian dollar loans, calculated from the closing date and payable quarterly in arrears commencing April 1, 2007, and for principal payments of two hundred thousand dollars (CDN) quarterly commencing April 1, 2007, with the final installment of principal and interest thereon due April 1, 2011. The note payable is subject to a general security agreement which subordinates the seller’s security interest to the interest of the buyer’s senior secured credit facility, but shall otherwise rank ahead of the seller’s other secured creditors.

Note Payable—Bank

At June 30, 2010, the Company has a $933 note payable to a bank. The note payable to the bank was assumed in connection with the QVM acquisition. The note was due on September 10, 2006. The maturity date was subsequently extended and the note is now due on April 1, 2012. The note has an interest rate of prime plus 2.5% until maturity, whether by acceleration or otherwise, or until default, as defined in the agreement, and after that at a default rate of prime plus 5.5%. Commencing on July 1, 2008, the Company is also required to make monthly principal payments of $50 on the first day of each month. The bank has been granted security interest in substantially all the assets of the Company’s Manitex subsidiary.

 

20


Table of Contents

Note Payable Issued to Acquire Badger Equipment Company

In connection with the Badger Equipment Company acquisition, the Company issued a note payable to the seller with a face amount of $2,750. The Company is obligated to make annual principal payments of $550 commencing on July 10, 2010 and on each year thereafter through July 10, 2014. The maturity date of the Term Note is July 10, 2014. Accrued interest under the promissory Note will be payable quarterly commencing on October 1, 2009. The unpaid principal balance of the Term Note will bear interest at 6% per annum. The holder of the note has been granted a security interest in the common stock of Badger Equipment Company, a subsidiary of the Company.

The note was recorded at its fair value on date of issuance at $2,440. The fair value of the promissory note was calculated to be equal to the present value of the future debt payments discounted at a market rate of return commensurate with similar debt instruments with comparable levels of risk and marketability. A rate of interest of 11% was determined to be the appropriate rate following an assessment of the risk inherent in the debt issue and the market rate for debt of this nature using corporate credit ratings criteria adjusted for the lack of public markets for this Note. The calculated fair value was $2,440. The difference between face amount of the note and its fair value is being amortized over the life of the note ($90 through June 30, 2010), and is being charged to interest expense. As of June 30, 2010, the note has a balance of $2,530.

Note Payable—Bank

At June 30, 2010, the Company has a $12 note payable to a bank. The note, dated October 16, 2009, had an original principal amount of $61 and has an annual interest rate of 4.2%. Under the terms of the note the company is required to make ten monthly payments of $6 commencing November 13, 2008. The proceeds from the note were used to pay annual premiums for certain insurance policies carried by the Company. The holder of the note has a security interest the insurance policies it financed and has the right upon default to cancel these policies and receive any unearned premiums.

Note Payable—Bank

At June 30, 2010, the Company has a $278 note payable to a bank. The note, dated January 7, 2010, had an original principal amount of $551 and has an annual interest rate of 4.12%. Under the terms of the note the company is required to make ten monthly payments of $56 commencing January 30, 2010. The proceeds from the note were used to pay annual premiums for certain insurance policies carried by the Company. The holder of the note has a security interest the insurance policies it financed and has the right upon default to cancel these policies and receive any unearned premiums.

Note Payable—Terex

At June 30, 2010, the Company has a note payable to Terex Corporation for $1,500. The note which had an original principal amount of $2,000 was issued in connection with the purchase of substantially all of the domestic assets of Crane & Machinery, Inc. (“Crane”) and Schaeff Lift Truck, Inc., (“Schaeff”). During the purchase negotiations, the Company agreed to assist the sellers and GT Distribution LLC in restructuring certain debt owed to Terex Corporation (“Terex”). Accordingly, on October 6, 2008, the Company entered into a Restructuring Agreement with Terex and Crane pursuant to which the Company executed and delivered to Terex a promissory note in the amount of $2,000 that has an annual interest rate of 6%. Terex has been granted a lien on and security interest in all of the assets of the Company’s Crane & Machinery Division.

The Company is required to make annual principal payments to Terex of $250 commencing on March 1, 2009 and on each year thereafter through March 1, 2016. So long as the Company’s common stock is listed for trading on the NASDAQ or another national stock exchange, the Company may opt to pay up to $150 of each annual principal payment in shares of the Company’s common stock having a market value of $150. Accrued interest under the note is payable quarterly.

Note payable floorplan

Atn June 30, 2010, the Company has a $1,726 note payable to a finance company. Under the floorplan agreement the Company may borrow up to $2,000 for equipment financing which is secured by all inventory financed by or leased from the lender and the proceeds there from. The terms and conditions of any loans, including interest rate, commencement date, and maturity date shall be determined by the lender upon its receipt of the Company’s request for an extension of credit. The rate, however, may be increased upon the lender giving five days written notice to the Company.

On December 30, 2008, the company borrowed $1,252 under the floorplan agreement with the loan bearing interest at a rate per annum equal to the prime rate of interest, as published in the Wall Street Journal, plus 6%. The Company repaid $255 of amount borrowed on May 7, 2010. On January 12, 2009 the Company borrowed $400 at a rate per annum equal to the prime rate of interest, as published in the Wall Street Journal, plus 5%. Since the initial borrowing, the lender has agreed to several interest rate reductions.

 

21


Table of Contents

At June 30, 2010, the interest rate on both borrowings was reduced to 6%. For twelve months from the date of borrowing, the Company is only required to make interest payments, followed by 48 equal monthly payments of principal and interest. The loan may be repaid at anytime and is not subject any prepayment penalty. On November 5, 2009, the lender agreed verbally to extend the interest only payments periods from twelve months to nineteen months for the two above loans. The Company will start making principal payment in connection with $997 ($1,252 less $255 repayment) and $400 of the outstanding debt in August 2010 and September 2010, respectively.

On June 3, 2010, the Company borrowed an additional $329 with a per annum interest rate of 6%. For twelve months following June 3, 2010, the Company is only required to make interest payments, followed by 48 equal monthly payments of principal and interest.

On March 3, 2010, the lender informed us that over the next three months that they will discontinue providing floor plan financing to construction equipment dealers. As such, the lender will not finance any additional equipment after June 3, 2010. The lender’s decision does not impact any loans that were outstanding at June 3, 2010 and such loans will continue under the terms and conditions that were in effect on the date the loan was made.

Note Payable Issued to Acquire Load King

In connection with the Load King acquisition, the Company has a note payable to the seller for $2,750. Under the Promissory Note, dated December 31, 2009, the Company is obligated to make equal annual principal payments of $458 on the last day of each year commencing on December 31, 2011 and ending on December 31, 2016 (the “Maturity Date”). Accrued interest under the Promissory Note will be payable quarterly in arrears on the last day of each calendar quarter, commencing on March 31, 2010, through and including the Maturity Date. The unpaid principal balance of the Promissory Note will bear interest at 6% per annum. The Seller has a security interest in the machinery and equipment located in South Dakota and a mortgage on certain real property in South Dakota. The Note is subject to acceleration upon the occurrence of customary events of default, including the Purchaser’s failure to pay when due any principal or interest, and such principal or interest remains unpaid for more than 30 days from its due date.

The note was recorded at its fair value on date of issuance at $2,580. The fair value of the promissory note was calculated to be equal to the present value of the future debt payments discounted at a market rate of return commensurate with similar debt instruments with comparable levels of risk and marketability. A rate of interest of 8% was determined to be the appropriate rate following an assessment of the risk inherent in the debt issue and the market rate for debt of this nature using corporate credit ratings criteria adjusted for the lack of public markets for this Note. The difference between face amount of the note and its fair value is being amortized over the life of the note ($26 through June 30, 2010), and is being charged to interest expense. As of June 30, 2010, the note has a balance of $2,606.

Capital leases

The Company has a twelve year lease which expires in April 2018 that provides for monthly lease payments of $70 for its Georgetown, Texas facility. The lease has been classified as a capital lease. At June 30, 2010, the outstanding capital lease obligation is $4,008.

The Company has a five year lease which expires in July 10, 2014 that provides for monthly lease payments of $25 for its Winona, Minnesota facility. The Company has an option to purchase the facility for $500 by giving notice to the Landlord of its intent to purchase the Facility. The Landlord must receive such notice at least three months prior to end of the Lease term. At June 30, 2010, the Company has outstanding capital lease obligation of $1,457.

The Company has two additional capital leases. The first is a 60 month truck lease which expires on September 8, 2011 that provides for monthly leases payments of $1. As of June 30, 2010, the capitalized lease obligation related to the aforementioned lease is $8. The second is a 72 month lease for a forklift which expires on July 20, 2015 that provides for monthly leases payments of $1. As of June 30, 2010, the capitalized lease obligation related to aforementioned lease was $45.

16. Legal Proceedings

The Company is involved in various legal proceedings, including product liability and workers’ compensation matters which have arisen in the normal course of operations. The Company has product liability insurance with self insurance retention that range from $50 to $1,000. Certain cases are at a preliminary stage, and it is not possible to estimate the amount or timing of any cost to the Company. When it is probable that a loss has been incurred and possible to make a reasonable estimates of the Company’s liability with respect to such matters, a provision is recorded for the amount of such estimate or the minimum amount of a range of estimates when it is not possible to estimate the amount within the range that is most likely to occur. However, the Company does not believe that these contingencies, in the aggregate, will have a material adverse effect on the Company.

One of our insurance carriers has denied coverage for two product liability claims. The Company believes the insurance companies’ basis for denial of coverage is improper. As such, the Company has engaged outside legal representation to challenge the insurance companies’ denial of coverage. Currently, the Company is engaged in a declaratory judgment action which contests the denial of coverage.

 

22


Table of Contents

It is reasonably possible that the “Estimated Reserve for Product Liability Claims” may change within the next 12 months. A change in estimate could occur if a case is settled for more or less than anticipated, or if additional information becomes known to the Company.

17. Business Segments

The Company operates in two business segments: Lifting Equipment and Equipment Distribution.

The Lifting Equipment segment is a leading provider of engineered lifting solutions. The Company designs, manufactures and distributes, predominately through a network of dealers, a diverse group of products that serve different functions and are used in a variety of industries. The Company markets a comprehensive line of boom trucks and sign cranes, a complete line of rough terrain forklifts, including both the Liftking and Noble product lines, as well as special mission oriented vehicles, and other specialized carriers, heavy material handling transporters and steel mill equipment. The Company also manufacturers a number of specialized rough terrain cranes and material handling products, including a newly introduced 30-ton model, the first in new line of specialized high quality rough terrain cranes. The Company lifting products are used in industrial applications, energy exploration and infrastructure development in the commercial sector and for military applications. The company’s specialized rough terrain cranes primarily serve the needs of the construction, municipality, and railroad industries. Additionally, as of January 1, 2010, the Company began to manufacture and distribute custom trailers and hauling systems typically used for transporting heavy equipment, Our trailer business serves niche markets in the commercial construction, railroad, military, and equipment rental industries through a dealer network.

The Equipment Distribution segment located in Bridgeview, Illinois is a distributor of Terex rough terrain and truck cranes, Fuchs material handlers, Manitex boom trucks and sky cranes. The Equipment Distribution segment predominately sells its products to end users, including the rental market. Its products are used primarily for infrastructure development and commercial constructions, applications include road and bridge construction, general contracting, roofing, scrap handling and sign construction and maintenance. The Equipment Distribution segment supplies repair parts for a wide variety of medium to heavy duty construction equipment and sells both domestically and internationally. The segment also provides repair services in the Chicago area. In the second quarter of 2010, we expanded our Equipment Distribution segment by creating new division, North American Equipment Exchange, (“NAEE” ) to market previously-owned construction and heavy equipment, domestic and internationally. This Division provides a wide range of used lifting and construction equipment of various ages and condition, and the Company has the capability to refurbish the equipment to the customers’ specification.

Acquisitions have been included in the Company’s results from their respective dates of acquisition: July 10, 2009 for Badger Equipment Company; and December 31, 2009 for the assets of Manitex Load King, Inc.

The following is financial information for our two operating segments, i.e., Lifting Equipment and Equipment Distribution

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2010     2009     2010     2009  

Net revenues

        

Lifting Equipment

   $ 18,442      $ 10,964      $ 39,574      $ 24,138   

Equipment Distribution

     1,060        884        1,898        1,752   
                                

Total

   $ 19,502      $ 11,848      $ 41,472      $ 25,890   

Operating income from continuing operations

        

Lifting Equipment

   $ 1,680      $ 523      $ 3,577      $ 1,598   

Equipment Distribution

     (159     (21     (269     (96

Corporate expenses

     (572     (471     (1,316     (988
                                

Total operating income from continuing operations

   $ 949      $ 31      $ 1,992      $ 514   
                                

The Lifting Equipment segment operating earnings includes amortization of $472 and $417 for the three months and $943 and $830 for the six months ended June 30, 2010 and 2009, respectively. The Equipment Distribution segment operating earnings includes amortization of $36 and $33 for the three months and $73 and $67 the six months ended June 30, 2010 and 2009, respectively.

 

     June 30,
2010
   December 31,
2009

Total Assets

     

Lifting Equipment

   $ 92,171    $ 89,384

Equipment Distribution

     5,316      5,154

Corporate

     115      147
             

Total

   $ 97,602    $ 94,685
             

 

23


Table of Contents

18. Transactions between the Company and Related Parties

In the course of conducting its business, the Company has entered into certain related party transactions.

The Company, through its Manitex and Manitex Liftking subsidiaries, purchases and sells parts to GT Distribution, LLC. (“GT”) including its subsidiaries, BGI USA, Inc. (“BGI”) and SL Industries, Ltd (“SL”). BGI is a distributor of assembly parts used to manufacture various lifting equipment. SL Industries, Ltd is a Bulgarian subsidiary of GT that manufactures fabricated and welded components used to manufacture various lifting equipment.

GT was owned in part by the Company’s Chairman and Chief Executive Officer until January 2009. In January 2009, Mr. Langevin assigned his ownership interest in GT to Bob Litchev, a Senior Vice President of Manitex International, Inc. Although the Company does not independently verify the cost of such parts, it believes the terms of such purchases and sales were at least as favorable to the Company as terms that it could obtain from a third party.

The Company through its Manitex Liftking subsidiary provides parts and services to LiftMaster, Ltd (“LiftMaster”) or purchases parts or services from LiftMaster. LiftMaster is a rental company that rents and services rough terrain forklifts. LiftMaster is owned by the Vice President of a wholly owned subsidiary of the Company, Manitex Liftking, ULC, and a relative.

As of June 30, 2010 the Company had an accounts receivable of $42 from LiftMaster and accounts payable of $31 and $345 to LiftMaster and GT, respectively. The Company has a $596 and $22 payable to GT and LiftMaster, respectively at December 31, 2009.

The following is a summary of the amounts attributable to certain related party transactions as described in the footnotes to the table, for the periods indicated:

 

     Three months ended
June 30, 2010
   Three months ended
June 30, 2009
   Six months ended
June 30, 2010
   Six months ended
June 30, 2009
Rent paid -       Bridgeview Facility 1      20      —        20      —  
Sales to:                  
      BGI USA, Inc.      —        7      —        7
      LiftMaster.      3      10      43      23
                                 
Total Sales    $ 3    $ 17    $ 43    $ 30
                                 
Purchases from:                  
      BGI USA, Inc    $ 39    $ 277    $ 70    $ 566
      SL Industries, Ltd.      331      234      914      643
      LiftMaster.      12      7      22      7
                                 
Total Purchases    $ 382    $ 518    $ 1,006    $ 1,216
                                 

 

1. The Company leases its 40,000 sq. ft. Bridgeview facility from an entity controlled by Mr. David Langevin, the Company’s Chairman and CEO. Pursuant to the terms of the lease, the Company makes monthly lease payments of $20. The Company is also responsible for all the associated operations expenses, including insurance, property taxes, and repairs. The lease will expire on June 30, 2016 and has a provision for six one year extension periods. The lease contains a rental escalation clause under which annual rent is increased during the initial lease term by the lesser of the increase in the Consumer Price Increase or 2.0%. Rent for any extension period shall however, be the then-market rate for similar industrial buildings within the market area.

The Company has the option, to purchase the building by giving the Landlord written notice at any time prior to the date that is 180 days prior to the expiration of the lease or any extension period. The Landlord can require the Company to purchase the building if a change of Control Event, as defined in the agreement occurs by giving written notice to the Company at any time prior to the date that is 180 days prior to the expiration of the lease or any extension period. The purchase price regardless whether the purchase is initiated by the Company or the Landlord will be the Fair Market Value as of the closing date of said sale.

 

24


Table of Contents

19. Income Taxes

The Company’s provision for income taxes consists of U.S. and foreign taxes in amounts necessary to align the Company’s year-to-date tax provision with the effective rate that the Company expects to achieve for the full year. Each quarter the Company updates its estimate of the annual effective tax rate and records cumulative adjustments as necessary. The 2010 and 2009 annual effective tax rates are estimated to be approximately 32.2% and 27.0% (excluding the impact of the discrete items related to 2009 which are discussed below) based upon the Company’s anticipated earnings both in the U.S. and in foreign jurisdictions.

For the three months ended June 30, 2010, the Company recorded an income tax expense of $100 which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes. For the three months ended June 30, 2009, the Company recorded an income tax benefit of $151 which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes offset by discrete items primarily related to the quarterly uncertain tax position adjustment and the partial reversal of a valuation allowance related to the Texas Temporary Margin Tax Credit which the Company has determined it will now realize on a more-likely-than-not basis.

For the six months ended June 30, 2010, the Company recorded an income tax expense of $258 which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes. For the six months ended June 30, 2009, the Company recorded an income tax benefit of $141 which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes offset by discrete items primarily related to the quarterly uncertain tax position adjustment and the partial reversal of a valuation allowance related to the Texas Temporary Margin Tax Credit which the Company has determined it will now realize on a more-likely-than-not basis. of a deferred tax asset for the Texas Temporary Margin Tax Credit as a result of the resolution of an income tax examination.

The Company’s total unrecognized benefits as of June 30, 2010 were approximately $170, which if recognized would affect the Company’s effective tax rate. As of June 30, 2010, the Company accrued immaterial amounts for the potential payment of interest and penalties.

20. Restructuring

For the three and six months ended June 30, 2010, the Company had restructuring expenses of $82 and $135, respectively. For the three and six months ended June 30, 2009, the Company had restructuring expenses of $22 and $153, respectively. During the second quarter 2010, the Company incurred costs of $51 to relocate its Bridgeview, Illinois facility to a smaller more economical facility. Except for the aforementioned relocation all other restructuring expenses are for severance payment made in connection with staff reductions.

21. CVS Transaction

In June 2010, the Company formed a new Italian subsidiary, CVS Ferrari, SRL. The CVS Ferrari, SRL has an agreement to operate, on an exclusive rental basis, the business of CVS Spa. CVS SPA is located near Milan, Italy and designs and manufacturers a range of reach stackers and associated lifting equipment for the global container handling market, sold through a broad dealer network. CVS Spa had 2008 annual sales of 71.8 million Euros prior to the recent economic downturn. The rental agreement has been filed with the Italian Court and commences July 1. In July, the Court approved the arrangement.

The rental period could extend for up to two years, but a shorter period is anticipated.

Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This quarterly report on Form 10-Q contains forward-looking statements relating to future events and the future performance of Manitex International, Inc. (the “Company”) within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including, without limitation, statements regarding the Company’s expectations, beliefs, intentions or future strategies that are signified by the words “expects,” “anticipates,” “intends,” “believes” or similar language. Forward-looking statements include, without limitation: (1) projections of revenue, earnings, capital structure and other financial items, (2) statements of our plans and objectives, (3) statements regarding the capabilities and capacities of our business operations, (4) statements of expected future economic conditions and the effect on us and on our customers, (5) expected benefits of our cost reduction measures, and (6) assumptions underlying statements regarding us or our business. Our actual results may differ materially from information contained in these forward looking-statements for many reasons, including those described below and in our 2009 Annual Report on Form 10-K in the section entitled “Item 1A. Risk Factors,”

 

25


Table of Contents
(1) Substantial deterioration in economic conditions, especially in the United States and Europe;

 

(2) our customers’ diminished liquidity and credit availability;

 

(3) difficulties in implementing new systems, integrating acquired businesses, managing anticipated growth, and responding to technological change;

 

(4) our ability to negotiate extensions of our credit agreements and to obtain additional debt or equity financing when needed;

 

(5) the cyclical nature of the markets we operate in;

 

(6) increases in interest rates;

 

(7) government spending, fluctuations in the construction industry, and capital expenditures in the oil and gas industry;

 

(8) the performance of our competitors;

 

(9) shortages in supplies and raw materials or the increase in costs of materials;

 

(10) our level of indebtedness and our ability to meet financial covenants required by our debt agreements;

 

(11) product liability claims, intellectual property claims, and other liabilities;

 

(12) the volatility of our stock price;

 

(13) future sales of our common stock;

 

(14) the willingness of our stockholders and directors to approve mergers, acquisitions, and other business transactions;

 

(15) currency transactions (foreign exchange) risks and the risks related to forward currency contracts;

 

(16) certain provisions of the Michigan Business Corporation Act and the Company’s Articles of Incorporation, as amended, Amended and Restated Bylaws, and the Company’s Preferred Stock Purchase Rights may discourage or prevent a change in control of the Company;

 

(17) A substantial portion of our revenues are attributed to limited number of customers which may decrease or cease purchasing any time; and

 

(17) NASDAQ may cease to list our Common Stock.

The risks described in our Annual Report on Form 10-K are not the only risks facing our Company. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition or operating results. We do not undertake, and expressly disclaim, any obligation to update this forward-looking information, except as required under applicable law. The following discussion should be read in conjunction with the accompanying Consolidated Financial Statements and Notes thereto of the Company appearing elsewhere within.

OVERVIEW

The Company is a leading provider of engineered lifting solutions. The Company operates in two business segments the Lifting Equipment segment and the Equipment Distribution segment.

Lifting Equipment Segment

The Company designs, manufactures and distributes a diverse group of products that serve different functions and are used in a variety of industries. Through its Manitex subsidiary it markets a comprehensive line of boom trucks and sign cranes. Manitex’s boom trucks and crane products are primarily used for industrial projects, energy exploration and infrastructure development, including, roads, bridges and commercial construction. Our subsidiary, Badger Equipment Company (“Badger”), acquired on July 10, 2009, is a manufacturer of specialized rough terrain cranes and material handling products, including a newly introduced 30-ton model, the first in a new line of specialized high quality rough terrain cranes. Badger primarily serves the needs of the construction, municipality, and railroad industries. The Company acquired Badger primarily to obtain the recently developed new 30 ton Rough Terrain crane together with Badger’s long standing crane legacy and niche customer relationships.

 

26


Table of Contents

The Manitex Liftking subsidiary sells a complete line of rough terrain forklifts; including the Liftking and Noble product lines, as well as special mission oriented vehicles, and other specialized carriers, heavy material handling transporters and steel mill equipment. Manitex Liftking’s rough terrain forklifts are used in both commercial and military applications. Specialty mission oriented vehicles and specialized carriers are designed and built to meet the Company’s unique customer needs and requirements. The Company’s specialized lifting equipment has met the particular needs of customers in various industries that include utility, ship building and steel mill industries. Schaeff Lift Truck Division. (“Schaeff”) produces a line of electric forklifts, further complements the Lifting Equipment segment.

On December 31, 2009, our subsidiary, Manitex Load King, Inc. acquired the operating assets of Load King Trailers, an Elk Point, South Dakota-based manufacturer of specialized custom trailers and hauling systems, typically used for transporting heavy equipment. Load King trailers serve niche markets in the commercial construction, railroad, military, and equipment rental industries through a dealer network. Load King complements our existing material handling business.

Equipment Distribution Segment

The Company’s Crane & Machinery Division (“Crane”) located in Bridgeview, Illinois, is a crane dealer that distributes Terex rough terrain and truck cranes, Fuchs material handlers, and Manitex boom trucks and sky cranes. We treat these operations as a separate reporting segment entitled “Equipment Distribution.” Our Equipment Distribution segment also supplies repair parts for a wide variety of medium to heavy duty construction equipment sold both domestically and internationally. Our crane products are used primarily for infrastructure development and commercial constructions, applications include road and bridge construction, general contracting, roofing, scrap handling and sign construction and maintenance. In the second quarter of 2010, we expanded our Equipment Distribution segment by creating new division, North American Equipment Exchange, (“NAEE” ) to market previously-owned construction and heavy equipment, domestic and internationally. This Division provides a wide range of used lifting and construction equipment of various ages and condition, and the Company has the capability to refurbish the equipment to the customers’ specification.

 

27


Table of Contents

Summary of Recent Acquisitions

On July 10, 2009, the Company completed the acquisition of the outstanding capital stock of Badger pursuant to a Stock Purchase Agreement (the “Purchase Agreement”) with Avis Industrial Corporation, an Indiana corporation (the “Seller”). The aggregate purchase price for the capital stock of Badger, as set forth in the Purchase Agreement, consisted of: (1) a promissory note of the Company in favor of Seller in the principal amount of $2.75 million, (2) 300,000 shares of the Company’s common stock and (3) $0.04 million in cash. See note 5 to the Company’s consolidated financial statements for additional information regarding the valuation of the consideration paid

On December 31, 2009, our subsidiary, Manitex Load King, Inc., acquired the operating assets of Load King Trailers pursuant to a purchase agreement (the “Load King Purchase Agreement”) with Genie Industries, Inc. (“Genie”), a subsidiary of Terex Corporation. The acquired assets consisted of substantially all of Genie’s Elk Point, South Dakota, operating assets and business operations, including the manufacturing facilities and offices located in Elk Point, South Dakota, and certain liabilities relating to its Load King specialized low-bed, heavy-haul, bottom-dump and platform trailer manufacturing business. The consideration for the purchase of the Load King assets consisted of: $0.1 million of cash, and the Company’s promissory note for $2.75 million. At the closing, the Company also issued a $0.25 million promissory note to ensure the delivery to the seller of 130,890 shares of the Company’s common stock, as partial consideration under the Load King Purchase Agreement. On January 6, 2010, the Company issued to Terex 130,890 shares of its common stock in satisfaction of such promissory note. See note 5 to the Company’s consolidated financial statements for additional information regarding the valuation of the consideration paid.

Customer and Suppliers Concentrations

At June 30, 2010, two customers accounted for 19.0% and 10.6% of the Company’s accounts receivable, respectively. As of December 31, 2009 two customers accounted for 22% and 20%, respectively, of Company accounts receivables.

For the three months ended June 30, 2010, two customers accounted for 14.8% and 12.2% the Company’s net revenues. For the three months ended June 30, 2009, no customer accounted for 10% or more of Company revenues. For the six months ended June 30, 2010 one customer accounted for 22.6% of the Company’s net revenue. For the six months ended June 30, 2009, no customer accounted for 10% or more of Company revenues.

For the three and six months ended June 30, 2010 and 2009, no supplier accounted for 10% or more of total Company purchases

Current Economic Conditions

Beginning in September of 2008, the United States and world financial markets came under unprecedented stress. The immediate impact was a dramatic decrease in liquidity and credit availability throughout the world. An incredibly rapid and significant deterioration in economic conditions, especially in the United States and Europe followed. These events had an immediate significant adverse impact on the Company, including a very dramatic curtailment of new orders, request to delay deliveries and, in some cases to cancel existing orders.

In response to the impact of economic conditions and longer sales cycles, it was determined that swift management action was necessary to ensure that operating activity was balanced with current demand levels. During the fourth quarter of 2008 and the first quarter of 2009, we implemented significant across the board cost reduction activities. From the end of the first quarter of 2009 until present, we have continued to evaluate and monitor our business and have implemented additional costs reductions when appropriate.

The specific actions taken to achieve these cost reductions comprise headcount reductions of salaried and hourly employees, virtual elimination of overtime, suspension of additional hires and merit increases, reduction in executive and salaried pay, bonus and benefits and the introduction of shortened workweeks. These actions, although difficult, were required to enable the Company to adjust to current conditions and position it to respond quickly when the market recovers.

Currently, the commercial markets that we serve continue to be severely depressed. The actions of the United States and other world governments to stimulate the world economy have been unprecedented. The United States stimulus package includes very significant appropriations for improving the country’s infrastructure, which could be a significant benefit to the Company. The ultimate success of governmental actions and the resulting benefits that the Company may see, however, remain unknown. We have seen certain sectors of the economy appearing to show signs of improving, particularly the energy, and power distribution sectors both domestically and internationally. However, our markets still remain significantly depressed and we cannot predict either the extent or timing of any resurgence.

Factors Affecting Revenues and Gross Profit

The Company derives most of its revenue from purchase orders from dealers and distributors. The demand for the Company’s products depends upon the general economic conditions of the markets in which the Company competes. The Company’s sales depend in part upon its customers’ replacement or repair cycles. Adverse economic conditions, including a decrease in commodity prices, may cause customers to forego or postpone new purchases in favor of repairing existing machinery. Additionally, our Manitex Liftking subsidiary revenues are impacted by the timing of orders received for military forklifts and residential housing starts.

 

28


Table of Contents

Gross profit varies from period to period. Factors that affect gross profit include product mix, production levels and cost of raw materials. Margins tend to increase when production is skewed towards larger capacity cranes, special mission oriented vehicles, specialized carriers and heavy material transporters.

Three Months Ended June 30, 2010 Compared to Three Months Ended June 30, 2009

Net income (loss) for the three month periods ended June 30, 2010 and 2009

For the three months ended June 30, 2010, the Company had a net income of $0.2 million. For the three months ended June 30, 2009, the Company had a net loss $0.1 million.

For the three months ended June 30, 2010, the net income of $0.2 million consisted of revenue of $19.5 million, cost of sales of $14.9 million, research and development costs of $0.3 million, SG&A costs excluding corporate expenses of $2.7 million, corporate SG&A expenses of $0.6 million, restructuring expenses of $0.1 million, interest expense of $0.6 million, and income tax expense of $0.1 million.

For the three months ended June 30, 2009, the net loss of $0.1 million consisted of revenue of $11.8 million, cost of sales of $9.4 million, research and development costs of $0.1 million, SG&A costs excluding corporate expenses of $1.8 million, corporate SG&A expenses of $0.5 million, net interest expense of $0.4 million, foreign currency transactions gains of $0.1 million and a tax benefit of $0.2 million.

Net Revenues and Gross Profit – For the three months ended June 30, 2010, net revenues and gross profit were $19.5 million and $4.6 million, respectively. Gross profit as a percent of revenues was 23.6% for the three months ended June 30, 2010. For the three months ended June 30, 2009 net revenues and gross profit were $11.8 million and $2.5 million, respectively. Gross profit as a percent of sales was 20.9% for the three months ended June 30, 2009.

Net revenues increased $7.7 million to $19.5 million for the three months ended June 30, 2010 from $11.8 million for the comparable period in 2009. Without the Badger and Load King acquisitions, revenues would have increased $3.5 million, as Badger, and Load King had combined revenues of $4.2 million for the three months ended June 30, 2010. Approximately 75% of the remaining increase is related to an increase in military sales (which includes an international agency) and approximately 25% is attributed to an increase in commercial sales. Although our commercial business remains significantly depressed compared to historical levels, we have seen some strengthening in demand for boom trucks principally in the energy and power distribution sectors.

Our gross profit as a percentage of net revenues increased 2.7% to 23.6% for the three months ended June 30, 2010 from 20.9% for the three months ended June 30, 2009. The increase in the gross margin percent is attributed to a favorable product mix, which included increased military sales and higher tonnage cranes, and the impact of restructuring activities implemented over the last year.

Selling, general and administrative expense – Selling, general and administrative expense for the three months ended June 30, 2010 was $3.3 million compared to $2.3 million for the comparable period in 2009. Selling, general and administrative expense for the three months ended June 30, 2010 is comprised of corporate expense of $0.6 million and $2.7 million related to operating companies. Selling, general and administrative expense for the three months ended June 30, 2009 was comprised of corporate expense of $0.5 million and $1.8 million related to operating companies.

Selling, general and administrative expense, excluding corporate expenses, increased $0.9 million to $2.7 million for the three months ended June 30, 2010 from $1.8 million for the comparable three month period in 2009. Selling, general and administrative expenses for the three months ended June 30, 2010 includes approximately $0.6 million related to the Badger and Load King acquisitions. Without the acquisitions, selling, general and administrative expense would have been $0.3 million above the prior year. An increase in selling expenses of $0.1 million, and $0.1 million effect of a strengthening Canadian dollar accounts for $0.2 million of the $0.3 million increase in selling, general and administrative expense. This increase in selling expenses of $0.1 million is related to the increase in revenue. The quarterly average exchange rate increased approximately 1155 basis points from .8578 for the second quarter of 2009 to .9733 for the second quarter of 2010. Approximately $0.1 million of the increase was the effect that a stronger Canadian dollar had on the conversion of Canadian dollar denominated expenses of our Canadian’s subsidiary into U.S .dollars. The remaining increase is attributed to a number of other expense items that both increased and decreased, netting to a $0.1 million increase.

Corporate expenses increased $0.1 million to $0.6 million for the three months ended June 30, 2010 from $0.5 million for the comparable 2009 three month period. The increase is attributed to an increase in salaries and benefit costs, due to the reversal of a portion of the employee pay reductions that were implemented in 2009.

 

29


Table of Contents

Operating income – For the three months ended June 30, 2010 and 2009, the Company had operating income of $0.9 million and $0.03 million, respectively. The increase in operating income is due to an increase in gross profit of $2.1 million offset by $1.2 million increase in operating expenses. An increase in revenues accounts for approximately $1.6 million of the increase in gross profit, the remaining $0.5 million is the result of an increase in the gross profit percent, which increased 2.7% to 23.6% from 20.9% between the second quarter 2009 and second quarter 2010. The increase in operating expenses is principally related to an increase in selling, general and administrative expenses of $1.0 million, which is explained above.

Interest expense – Interest expense was $0.6 million and $0.3 million for the three months ended June 30, 2010 and 2009, respectively. The increase in interest expense is the result of an increase in interest rates applicable to the Company’s borrowing between years and an increase in outstanding debt.

On July 9, 2009, the Company and its bank amended the Company’s Revolving Credit Facility, the Revolving Canadian Credit Facility and its Term loan. Under the agreements the maturity dates were extended from April 1, 2010 to April 1, 2012. In connection with the extension, the Company agreed to increased interest rates. The interest on U.S. borrowing increased from prime rate plus .25% to prime plus 2.0%, interest rates on Canadian borrowings increased from Canadian prime rate plus 1.50% to Canadian prime rate plus 3.0% and interest on its term loan increased from the prime rate plus 1% to the prime rate plus 2.5%. On May 5, 2010, the bank reduced the interest rate on the Company’s revolving credit lines by 0.5%

Total debt increased $9.9 million from $25.1 million at June 30, 2009 to $35.0 million at June 30, 2010. Approximately, $6.6 million of the increase is acquisition debt related to the Badger and Load King acquisitions. Another $1.8 million was borrowed under our Canadian Revolving credit facility to support increased levels of business activity in Canada. The remaining increase of $1.5 million is attributed to an increase of $3.0 million in borrowings under the Company’s U.S. revolving credit facilities offset by repayment of other debt.

Foreign currency transaction gains – The Company attempts to purchase forward currency exchange contracts such that the exchange gains and losses on the assets and liabilities denominated in other than the reporting units’ functional currency will be offset by the changes in the market value of the forward currency exchange contracts it holds.

For the three months ended June 30, 2010, the Company had a foreign currency transaction loss of $0.03 million. For the three months ended June 30, 2009, the Company had a foreign currency gain of $0.1 million.

Income tax – For the three months ended June 30, 2010, the Company recorded an income tax expense of 0.1 million which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes. For the three months ended June 30, 2009, the Company recorded an income tax benefit of $0.2 million which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes offset by discrete items primarily related to the quarterly uncertain tax position adjustment and the partial reversal of a valuation allowance related to the Texas Temporary Margin Tax Credit which the Company has determined it will now realize on a more-likely-than-not basis.

Net income – Net income for the three months ended June 30, 2010 was $0.2 million. This compares with a net loss for the three months ended June 30, 2009 of $0.1 million. The change in net income is explained above.

Six Months Ended June 30, 2010 Compared to Six Months Ended June 30, 2009

Net income (loss) for the six month periods ended June 30, 2010 and 2009

For the six months ended June 30, 2010, the Company had a net income of $0.5 million. For the six months ended June 30, 2009, the Company had a net loss $0.1 million.

For the six months ended June 30, 2010, the net income of $0.5 million consisted of revenue of $41.5 million, cost of sales of $31.7 million, research and development costs of $0.6 million, SG&A costs excluding corporate expenses of $5.8 million, corporate SG&A expenses of $1.3 million, restructuring expenses of $$0.1 million, interest expense of $1.2 million, a foreign currency transaction loss of $0.1 and income tax expense of $0.3 million.

For the six months ended June 30, 2009, the net loss of $0.1 million consisted of revenue of $25.9 million, cost of sales of $20.4 million, research and development costs of $0.2 million, SG&A costs excluding corporate expenses of $3.6 million, corporate SG&A expenses of $1.0 million, restructuring expenses of $0.2, net interest expense of $0.8 million, foreign currency transactions gains of $0.1 million and a tax benefit of $0.1 million.

Net Revenues and Gross Profit – For the six months ended June 30, 2010, net revenues and gross profit were $41.5 million and $9.8 million, respectively. Gross profit as a percent of revenues was 23.7% for the six months ended June 30, 2010. For the six months ended June 30, 2009 net revenues and gross profit were $25.9 million and $5.5 million, respectively. Gross profit as a percent of sales was 21.3% for the six months ended June 30, 2009.

 

30


Table of Contents

Net revenues increased $15.6 million to $41.5 million for the six months ended June 30, 2010 from $25.9 million for the comparable period in 2009. Without the Badger and Load King acquisitions, revenues would have increased $7.4 million, as Badger, and Load King had combined revenues of $8.2 million for the six months ended June 30, 2010. The remaining increase in revenues is entirely related to an increase in military sales (which includes an international agency) as commercial sales for existing business was down. Military revenues for the six months ended June 30, 2010 includes revenues of $3.4 million for orders shipped predominately in October and November 2009, which could not be included in revenue until 2010. These particular items were shipped F.O.B destination and had not been received by the customer as of December 31, 2009 and as such could not be included in 2009 revenues. The customer, an international agency, purchased the items and required shipment to remote locations, which accounted for the extremely long delivery times. The decrease in commercial revenues is attributed to the current world wide economic downturn that began in September 2008.

The decrease in commercial revenues is entirely related to lower commercial sales in the first quarter 2010 compared to the first quarter of 2009. In the second quarter 2010, we experienced some strengthening in demand for boom trucks, principally in the energy, and power distribution sectors. As result, we had a modest increase in commercial revenues between the second quarter 2010 compared to the second quarter 2009. The second quarter increase, however, only partially offset the first quarter decrease. Although we have seen some strengthening in demand, our commercial business remains significantly depressed compared to historical levels.

Our gross profit as a percentage of net revenues increased 2.4% to 23.7% for the six months ended June 30, 2010 from 21.3% for the six months ended June 30, 2009. The increase in the gross margin percent is attributed to a favorable product mix, which included increased military sales and higher tonnage cranes, and the impact of restructuring activities implemented over the last year.

Selling, general and administrative expense – Selling, general and administrative expense for the six months ended June 30, 2010 was $7.1 million compared to $4.6 million for the comparable period in 2009. Selling, general and administrative expense for the six months ended June 30, 2010 is comprised of corporate expense of $1.3 million and $5.8 million related to operating companies. Selling, general and administrative expense for the six months ended June 30, 2009 was comprised of corporate expense of $1.0 million and $3.6 million related to operating companies.

Selling, general and administrative expense, excluding corporate expenses, increased $2.2 million to $5.8 million for the six months ended June 30, 2010 from $3.6 million for the comparable six month period in 2009. Selling, general and administrative expenses for the six months ended June 30, 2010 includes approximately $1.2 million related to the Badger and Load King acquisitions. Without the acquisitions, selling, general and administrative expense would have been $1.0 million above the prior year. This increase is attributed to increased selling expenses of $0.5 million, related to the increase in revenue, an increase in legal expenses of approximately $0.2 million, and the effect of a strengthening Canadian dollar. The quarterly average exchange rate increased approximately 1367 basis points from .8304 for the first six months of 2009 to .9671 for the first six months of 2010. Approximately $0.2 million of the increase was the effect that a stronger Canadian dollar had on the conversion of Canadian dollar denominated expenses of our Canadian’s subsidiary into U.S .dollars.

Corporate expenses increased $0.3 million to $1.3 million for the six months ended June 30, 2010 from $1.0 million for the comparable 2009 six month period. Approximately half of this increase is associated with costs related to the Load King acquisitions and an increase in audit fees directly attributed to acquiring. The remaining increase is largely attributed to an increase in salaries and benefit costs, due to the reversal of a portion of the employee pay reductions that were implemented in 2009.

Operating income – For the six months ended June 30, 2010 and 2009, the Company had operating income of $2.0 million and $0.5 million, respectively. The increase in operating income is due to an increase in gross profit of $4.3 million offset by $2.8 million increase in operating expenses. An increase in revenues accounts for approximately $3.3 million of the increase in gross profit, the remaining $1.0 million is the result of an increase in the gross profit percent, which increased 2.4% to 23.7% from 21.3% between the for the six months ended June 30, 2010 and the comparable period in 2009. The increase in operating expenses is principally related to an increase in selling, general and administrative expenses of $2.5 million, which is explained above.

Interest expense – Interest expense was $1.2 million and $0.8 million for the six months ended June 30, 2010 and 2009, respectively. The increase in interest expense is the result of an increase in interest rates applicable to the Company’s borrowing between years and an increase in outstanding debt.

On July 9, 2009, the Company and its bank amended the Company’s Revolving Credit Facility, the Revolving Canadian Credit Facility and its Term loan. Under the agreements the maturity dates were extended from April 1, 2010 to April 1, 2012. In connection with the extension, the Company agreed to increased interest rates. The interest on U.S. borrowing increased from prime rate plus .25% to prime plus 2.0%, interest rates on Canadian borrowings increased from Canadian prime rate plus 1.50% to Canadian prime rate plus 3.0% and interest on its term loan increased from the prime rate plus 1% to the prime rate plus 2.5%. On May 5, 2010, the bank reduced the interest rate on the Company’s revolving credit lines by 0.5%

 

31


Table of Contents

Total debt increased $9.9 million from $25.1 million at June 30, 2009 to $35.0 million at June 30, 2010. Approximately, $6.6 million of the increase is acquisition debt related to the Badger and Load King acquisitions. Another $1.8 million was borrowed under our Canadian Revolving credit facility to support increased levels of business activity in Canada. The remaining increase of $1.5 million is attributed to an increase of $3.0 million in borrowings under the Company’s U.S. revolving credit facilities offset by repayment of other debt .

Foreign currency transaction gains – The Company attempts to purchase forward currency exchange contracts such that the exchange gains and losses on the assets and liabilities denominated in other than the reporting units’ functional currency will be offset by the changes in the market value of the forward currency exchange contracts it holds.

For the six months ended June 30, 2010, the Company had a foreign currency transaction loss of $0.1 million. For the six months ended June 30, 2009, the Company had a foreign currency gain of $0.1 million.

Income tax – For the six months ended June 30, 2010, the Company recorded an income tax expense of $0.3 million which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes. For the six months ended June 30, 2009, the Company recorded an income tax benefit of $0.1 million which consisted primarily of anticipated federal alternative minimum tax, current year state and local tax and foreign taxes offset by discrete items primarily related to the quarterly uncertain tax position adjustment and the partial reversal of a valuation allowance related to the Texas Temporary Margin Tax Credit which the Company has determined it will now realize on a more-likely-than-not basis. of a deferred tax asset for the Texas Temporary Margin Tax Credit as a result of the resolution of an income tax examination.

Net income – Net income for the six months ended June 30, 2010 was $0.5 million. This compares with a net loss for the six months ended June 30, 2009 of $0.1 million. The change in net income is explained above.

Segment information

Lifting Equipment Segment

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2010     2009 (1) (2)     2010     2009 (1) (2)  

Net revenues

   $ 18,442      $ 10,964      $ 39,574      $ 24,138   

Operating income

     1,680        523        3,577        1,598   

Operating margin

     9.1     4.8     9.0     6.6

 

(1) Financial results, for the Badger acquisition are included from the date of acquisition which is July 10, 2009.
(2) Financial results, for the Load King acquisition are included from the date of acquisition which is December 31, 2009

Net Revenues

Net revenues increased $7.5 million to $18.4 million for the three months ended June 30, 2010 from $11.0 million for the comparable period in 2009. Without the Badger and Load King acquisitions, revenues would have increased $3.3 million, as Badger, and Load King had combined revenues of $4.2 million for the three months ended June 30, 2010. Approximately 75% of the remaining increase is related to an increase in military sales (which includes an international agency) and approximately 25% is attributed to an increase in commercial sales. Although our commercial business remains significantly depressed compared to historical levels, we have seen some strengthening in demand for boom trucks principally in the energy and power distribution sectors.

Net revenues increased $15.4 million to $39.6 million for the six months ended June 30, 2010 from $24.1 million for the comparable period in 2009. Without the Badger and Load King acquisitions, revenues would have increased $7.2 million, as Badger, and Load King had combined revenues of $8.2 million for the six months ended June 30, 2010. The remaining increase in revenues is entirely related to an increase in military sales (which includes an international agency) as commercial sales for existing business was down. Military revenues for the six months ended June 30, 2010 includes revenues of $3.4 million for orders shipped predominately in October and November 2009, which could not be included in revenue until 2010. These particular items were shipped F.O.B destination and had not been received by the customer as of December 31, 2009 and as such could not be included in 2009 revenues. The customer, an international agency, purchased the items and required shipment to remote locations, which accounted for the extremely long delivery times. The decrease in commercial revenues is attributed to the current world wide economic downturn that began in September 2008.

 

32


Table of Contents

The decrease in commercial revenues is entirely related to lower commercial sales in the first quarter 2010 compared to the first quarter of 2009. In the second quarter 2010, we experienced some strengthening in demand for boom trucks, principally in the energy, and power distribution sectors. As result, we had a modest increase in commercial revenues between the second quarter 2010 compared to the second quarter 2009. The second quarter increase, however, only partially offset the first quarter decrease. Although we have seen some strengthening in demand, our commercial business remains significantly depressed compared to historical levels

Operating Income and Operating Margins

Operating income of $3.6 million for the three months ended June 30, 2010 was equivalent to 9.1% of net revenues compared to an operating income of $0.5 million for the three months ended June 30, 2009 or 4.8% of net revenues. The increase in operating income and operating income as a percent of revenue is due to significant increase in revenues, and a higher gross margin percent, which was offset by $1.0 million increase in operating expenses. Without the Badger and Load King acquisitions, operating expenses would have increased by approximately $0.3 million which is in part accounted for by the increase in revenues.

Operating income of $3.6 million for the six months ended June 30, 2010 was equivalent to 9.0% of net revenues compared to an operating income of $1.6 million for the six months ended June 30, 2009 or 6.6% of net revenues. The increase in operating income and operating income as a percent of revenue is due to significant increase in revenues, and a higher gross margin percent, which was offset by $2.4 million increase in operating expenses. Without the Badger and Load King acquisitions, operating expenses would have increased by approximately $1.0 million. The increase in operating expenses is attributed to increased selling expense (related to the increase in revenues, effect that a strengthening Canadian dollar had, and an increase in legal expenses.

Equipment Distribution Segment

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2010     2009     2010     2009  

Net revenues

   $ 1,060      $ 884      $ 1,898      $ 1,752   

Operating loss

     (159     (21     (269     (96

Operating margin

     (15.0 )%      (2.4 )%      (7.5 )%      (5.5 )% 

Net revenues – Net revenues increased $0.2 million to $1.1 million for the three months ended June 30, 2010 from $0.9 million for the comparable period in 2009. Net revenues increased $0.1 million to $1.9 million for the six months ended June 30, 2010 from $1.8 million for the comparable period in 2009. The increase in revenues for both the three and six months is attributed the sale of used equipment.

Operating loss and Operating Margins – Operating loss of $(0.2) million for the three months ended June 30, 2010 was equivalent to (15.0)% of net revenues compared to an operating loss of $(0.02) million for the three months ended June 30, 2009 or (2.4)% of net revenues. Operating loss of $(0.3) million for the six months ended June 30, 2010 was equivalent to (7.5)% of net revenues compared to an operating loss of $(0.1) million for the six months ended June 30, 2009 or (5.5)% of net revenues. The increase in the operating loss is primarily the result a lower gross margin percent for both the three and six months ended June 30, 2010 as compared to the corresponding periods in 2009. Slightly higher operating expenses also contributed the increase in operating losses for both the three and six month periods. The decrease in the gross margin percent is due to a change in the sales mix.

Liquidity and Capital Resources

Cash and cash equivalents were $1.5 million at June 30, 2010 compared to $0.3 million at December 31, 2009. In addition, the Company has both a U.S. and Canadian revolving credit facility, with a maturity date of April 1, 2012. At June 30, 2010 the Company had approximately $3.1 million available to borrow under its credit facilities.

During the six months ended June 30, 2010, total debt increased by $1.5 million to $35.0 million at June 30, 2010 from $33.5 million at December 31, 2009. The following is a summary of the net increase in our indebtedness:

 

Revolving credit facility

   $ 3.1      million

Revolving Canadian credit facility

     (0.7   million

Revolving credit facility – Equipment Line

     0.2      million

Liftking acquisition note

     (0.4   million

QVM acquisition bank debt

     (0.2   million

Note payable – floor plan

     0.1      million

Capital leases

     (0.3   million

Note payable – Terex

     (0.3   million (including $0.15 millions paid with Company Stock)

Manitex stock note

     (0.2)      million paid in Company stock

Notes to Finance Insurance premium

     0.2      million (significant portion of our insurance renews on December 30 each year)
          
   $ 1.5      million

 

33


Table of Contents

Outstanding borrowings

The following is a summary of our outstanding borrowings at June 30, 2010

 

     Outstanding
Balance
   Interest
Rate
    Interest
Paid
  

Principal Payment

Revolving credit facility

   $  14.8 million    4.75   Monthly    n.a.

Revolving Canadian credit facility

     4.3 million    4.50   Monthly    n.a.

Revolving credit facility – Equipment Line

     0.2 million    4.75   Monthly    n.a.

Liftking acquisition note

     0.6 million    3.50   Quarterly    $0.2 million quarterly

Badger acquisition note

     2.5 million    11.   Quarterly    $0.6 million each July 10

Load King acquisition note

     2.6 million    8   Quarterly    $0.5 million annually beginning 12/31/11

QVM acquisition bank debt

     0.9 million    5.75   Monthly    $0.05 million monthly

Note payable – floor plan

     1.7 million    6.0   Monthly    Over 48 months beginning August and September 2010

Note payable – Terex

     1.5 million    6.0   Quarterly    $0.25 million March 1 ($0.15 million can be paid in stock)

Notes to Finance Insurance premium

     0.3 million    4.12   Monthly    Fixed payment including interest of approximately $0.1 million paid monthly

Capital lease – Georgetown facility

     4.0 million    12   Monthly    $0.07 million monthly payment includes interest

Capital leases – Winona facility

     1.6 million    6.13   Monthly    $0.025 million monthly payment includes interest
              
   $ 35.0 million     
              

Future availability under credit facilities

As stated above, the Company had cash of $1.5 million and approximately $3.1 million available to borrow under its credit facilities at June 30, 2010.

Both the US and Canadian credit facilities are asset based. The maximum the Company may borrow under either facility is the lower of the credit line or the available collateral, as defined in the credit agreements. Collateral under the agreements consists of stated percentages of eligible accounts receivable and inventory. Beginning in September 2008, the financial markets in the United States and globally came under incredible stress. A substantial deterioration in economic conditions, especially in the United States and Europe followed. As a result, the Company has seen a significant contraction in its business, which continues. This contraction in business generally means that accounts receivable and inventory balances are reduced and the maximum that Company can borrow under its revolving credit facilities is also reduced. The Company has implemented significant across the board cost reductions to ensure that operating activity is balanced with current demand levels and to reduce cash requirements to the extent possible.

The Company needs cash to meet its working capital needs as the business grows, to acquire capital equipment, and to fund acquisitions and debt repayment. We intend to use cash flows from operations and existing availability under the current revolving credit facilities to fund anticipated levels of operations for approximately the next 12 months. Management has to ensure that operating activity is balanced with current demand levels and has reduced operating costs dramatically, and as a result management believes that its two credit facilities will provide sufficient working capital. However, the length and severity of the current business contraction is not known, we cannot say with certainty that cash generated from operations will be adequate or that the credit facilities will have sufficient availability to bridge any short fall. The longer the business contraction lasts or deeper it becomes the greater the risk.

 

34


Table of Contents

We will likely need to raise additional capital through debt or equity financings to support our growth strategy, which may include additional acquisitions. There is no assurance that such financing will be available or, if available, on acceptable terms.

2010

Operating activities consumed $0.4 million of cash for the six months ended June 30, 2010 comprised of net income of $0.5 million, non-cash items that totaled $1.6 million and changes in assets and liabilities, which consumed $2.6 million. The principal non-cash item is depreciation and amortization of $1.6 million.

A decrease in inventory of $0.6 million and increases in accounts payable of $0.2 million, accrued expenses of $0.7 million and other current liabilities of $0.2 million were more than offset by an increases in accounts receivable of $4.1 million and prepaid expenses of $0.1 million. The increase in accrued expenses is primarily related to increases in accrued commission (the result of increased revenues), an increase in an accrued liability on forward exchange contracts (due to the strengthening of the US$ compared to the Canadian $) and an increase in accrual for property tax (due timing of payments). The increase in other current liabilities is the result of an increase in customer deposits received. The increase in accounts receivable is principally due to an increase in revenues.

Cash flows related to investing activities generated $0.1 million of cash for the six months ended June 30, 2010, as the proceeds $0.22 million from the sale of equipment were slightly more that amount spent to purchase equipment.

Financing activities generated $1.9 million in cash for the six months ended June 30, 2010. The above table shows a net increase in outstanding debt of $1.5 million. Included in this net increase of $1.5 million are two non-cash debt reductions that total $0.4 million whose impact are excluded from the cash flow statement. See notes (1) and (2) on the face of the Consolidated Statement of Cash Flows for additional details regarding the two non-cash transactions.

2009

Operating activities generated cash of $2.8 million for the six months ended June 30, 2009 comprised of net loss of $0.1 million, non-cash items that totaled $1.1 million and changes in assets and liabilities, which generated $1.7 million. The principal non-cash items are depreciation and amortization of $1.1 million. A decrease in accounts receivable of $8.9 million was offset by increases in inventory of $0.4 million, an increase in prepaid expenses of $0.4 million and a decrease in accounts payable, accruals and other current liabilities of $5.2 million, $1.1 million and $0.2 million, respectively

The decrease in accounts receivable and accounts payable is due to the decrease in revenues and purchases. The increase in prepaid expenses is primarily related to an increase in the prepaid insurance balance. The prepaid balance has increased as payments were made in January 2009 for insurance policies that renewed on December 30, 2008. The decrease in accrued expense is due to a lower balance in reserves for several items, including vacation, warranty and commissions. The decreases are attributed to lower revenues and reductions in the workforce. The decrease in other current liabilities is due to a decrease in customer deposits. The decrease in the aforementioned accruals were partially offset by a $0.2 million increase in the reserve for the liability on forward exchange contracts.

Cash flows related to investing activities were immaterial for the six months ended June 30, 2009.

Financing activities consumed $2.9 million in cash for the six months ended June 30, 2009. A decrease in borrowings under the Company’s credit facilities, note payments, and capital lease payments consumed $2.9 million, $1.0 million and $0.1 million of cash, respectively. The reduction in borrowing under the credit facilities and note payments was offset by $1.1 million in new borrowings. During the six months ended June 30, 2009, note payments of $0.3 million, $0.3 million $0.1 million and $0.3 million were made on the Liftking Industries note, notes to finance insurance premiums, the Terex note and the term loan. During the six months ended June 30, 2009, the Company borrowed $0.5 million to finance insurance premiums and $0.4 million under the floorplan financing agreement to finance the purchase of a crane. Additionally, the Company increased borrowing on its Canadian credit facility by $0.2 million.

Contingencies

The Company is involved in various legal proceedings, including product liability and workers’ compensation matters which have arisen in the normal course of operations. Certain cases are at a preliminary stage, and it is not possible to estimate the amount or timing of any cost to the Company. However, the Company does not believe that these contingencies, in aggregate, will have a material adverse effect on the Company.

 

35


Table of Contents

Related Party Transactions

For a description of the Company’s related party transactions, please see Note 18 to the Company’s consolidated financial statements entitled “Transactions between the Company and Related Parties.”

Critical Accounting Policies

See Item 7, Management’s Discussion and Analysis of Results of Operations and Financial Condition in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009, for a discussion of the Company’s other critical accounting policies.

Impact of Recently Issued Accounting Standards

In October 2009, the FASB issued Accounting Standards Update 2009-13, “Multiple-Deliverable Revenue Arrangements”, which amended ASC 605, “Revenue Recognition.” This guidance addresses how to determine whether an arrangement involving multiple deliverables contains more than one unit of accounting, and how to allocate the consideration to each unit of accounting. In an arrangement with multiple deliverables, the delivered item(s) shall be considered a separate unit of accounting if the delivered items have value to the customer on a stand-alone basis. Items have value on a stand-alone basis if they are sold separately by any vendor or the customer could resell the delivered items on a stand-alone basis and if the arrangement includes a general right of return relative to the delivered items, delivery or performance of the undelivered items is considered probable and substantially in the control of the vendor.

Arrangement consideration shall be allocated at the inception of the arrangement to all deliverables based on their relative selling price, except under certain circumstances such as items recorded at fair value and items not contingent upon the delivery of additional items or meeting other specified performance conditions. The selling price for each deliverable shall be determined using vendor specific objective evidence (“VSOE”) of selling price, if it exists, otherwise third-party evidence of selling price. If neither VSOE nor third-party evidence exists for a deliverable, the vendor shall use its best estimate of the selling price for that deliverable. This guidance eliminates the use of the residual value method for determining allocation of arrangement consideration and allows the use of an entity’s best estimate to determine the selling price if VSOE and third-party evidence cannot be determined. It also requires additional disclosures such as the nature of the arrangement, certain provisions within the arrangement, significant factors used to determine selling prices and the timing of revenue recognition related to the arrangement. This guidance shall be effective for fiscal years beginning on or after June 15, 2010, with early adoption permitted. We are currently evaluating the impact that adoption of this guidance will have on the determination and reporting of our financial results.

In June 2009, the FASB revised the authoritative guidance for determining the primary beneficiary of a VIE. In December 2009, the FASB issued Accounting Standards Update No. 2009-17, “Improvements to Financial Reporting by Enterprises Involved with Variable Interest Entities” (“ASU 2009-17”), which provides amendments to ASC 810 to reflect the revised guidance. The amendments in ASU 2009-17 replace the quantitative-based risks and rewards calculation for determining which reporting entity, if any, has a controlling financial interest in a VIE with an approach focused on identifying which reporting entity has the power to direct the activities of a VIE that most significantly impact the entity’s economic performance and (1) the obligation to absorb losses of the entity or (2) the right to receive benefits from the entity. The amendments in ASU 2009-17 also require additional disclosures about a reporting entity’s involvement with VIEs. ASU 2009-17 is effective for fiscal years beginning after November 15, 2009, for interim periods within that first annual reporting period and for interim and annual reporting periods thereafter. The adoption of this guidance on January 1, 2010, did not have a significant impact on the determination or reporting of our financial results.

In January 2010, the FASB issued Accounting Standards Update 2010-01, Equity (Topic 505): Accounting for Distributions to Shareholders with Components of Stock and Cash (A Consensus of the FASB Emerging Issues Task Force). This amendment to Topic 505 clarifies the stock portion of a distribution to shareholders that allows them to elect to receive cash or stock with a limit on the amount of cash that will be distributed is not a stock dividend for purposes of applying Topics 505 and 260. Effective for interim and annual periods ending on or after December 15, 2009, and would be applied on a retrospective basis. The adoption did not have an impact on its results of operations, financial position and cash flows.

In January 2010, the FASB issued Accounting Standards Update 2010-02, Consolidation (Topic 810): Accounting and Reporting for Decreases in Ownership of a Subsidiary. This amendment to Topic 810 clarifies, but does not change, the scope of current US GAAP. It clarifies the decrease in ownership provisions of Subtopic 810-10 and removes the potential conflict between guidance in that Subtopic and asset derecognition and gain or loss recognition guidance that may exist in other US GAAP. An entity will be required to follow the amended guidance beginning in the period that it first adopts FAS 160 (now included in Subtopic 810-10). For those entities that have already adopted FAS 160, the amendments are effective at the beginning of the first interim or annual reporting period ending on or after December 15, 2009. The provisions were adopted on January 1, 2009. The adoption did not have a material impact on our Consolidated Financial Statements.

 

36


Table of Contents

In January 2010, the FASB issued Accounting Standards Update 2010-06, Fair Value Measurements and Disclosures (Topic 820): Improving Disclosures about Fair Value Measurements. This ASU requires some new disclosures and clarifies some existing disclosure requirements about fair value measurement as set forth in Codification Subtopic 820-10. The FASB’s objective is to improve these disclosures and, thus, increase the transparency in financial reporting. Specifically, ASU2010-06 amends Codification Subtopic 820-10 to now require:

 

   

A reporting entity to disclose separately the amounts of significant transfers in and out of Level 1 and Level 2 fair value measurements and describe the reasons for the transfers; and,

 

   

In the reconciliation for fair value measurements using significant unobservable inputs, a reporting entity should present separately information about purchases, sales, issuances and settlements.

In addition, ASU2010-06 clarifies the requirements of the following existing disclosures:

 

   

For purposes of reporting fair value measurement for each class of assets and liabilities, a reporting entity needs to use judgment in determining the appropriate classes of assets and liabilities; and,

 

   

A reporting entity should provide disclosures about the valuation techniques and inputs used to measure fair value for both recurring and nonrecurring fair value measurements. ASU2010-06 is effective for interim and annual reporting periods beginning after December 15, 2009, except for the disclosures about purchases, sales, issuances and settlements in the roll forward of activity in Level 3 fair value measurements. Those disclosures are effective for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal years. Early adoption is permitted. The provisions were adopted on January 1, 2009. The adoption did not have a material impact on our Consolidated Financial Statements.

In February 2010, the FASB issued Accounting Standards Update 2010-08, Technical Corrections to Various Topics , which provides certain clarifications made to the guidance on embedded derivatives and hedging. The Update was issued to provide special transition provisions upon application of the change in application of the topic. The Company does not believe that this update will have a material impact on its financial statements.

In February 2010, the FASB issued Accounting Standards Update 2010-09, Subsequent Events (Topic 855): Amendments to Certain Recognition and Disclosure Requirements. ASU 2010-09 removes the requirement for an SEC filer to disclose a date through which subsequent events have been evaluated in both issued and revised financial statements. Revised financial statements include financial statements revised as a result of either correction of an error or retrospective application of U.S. GAAP. The FASB also clarified that if the financial statements have been revised, then an entity that is not an SEC filer should disclose both the date that the financial statements were issued or available to be issued and the date the revised financial statements were issued or available to be issued. The FASB believes these amendments remove potential conflicts with the SEC’s literature. In addition, the amendments in the ASU requires an entity that is a conduit bond obligor for conduit debt securities that are traded in a public market to evaluate subsequent events through the date of issuance of its financial statements and must disclose such date. All of the amendments in the ASU were effective upon issuance (February 24, 2010) except for the use of the issued date for conduit debt obligors. That amendment is effective for interim or annual periods ending after June 15, 2010. The guidance, except for that related to conduit debt obligations, has been adopted and did not have a material impact on our Consolidated Financial Statements.

In March 2010, the FASB issued Accounting Standards Update 2010-11, Derivatives and Hedging (Topic 815): Scope Exception Related to Embedded Credit Derivatives. The amendments in this Update are effective for each reporting entity at the beginning of its first fiscal quarter beginning after June 15, 2010. Early adoption is permitted at the beginning of each entity’s first fiscal quarter beginning after issuance of this Update. The Company does not expect the provisions of ASU 2010-11 to have a material effect on the financial position, results of operations or cash flows of the Company.

In April 2010, the FASB issued Accounting Standards Update 2010-13, Compensation-Stock Compensation (topic 718): Effect of Denominating the Exercise Price of a Share-Based Payment Award in the Currency of the Market in Which the Underlying Equity Security Trades—a consensus of the FASB Emerging Issues Task Force. The amendments in this Update are effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2010. Earlier application is permitted. The Company does not expect the provisions of ASU 2010-13 to have a material effect on the financial position, results of operations or cash flows of the Company.

Off-Balance Sheet Arrangements

None.

Item 3—Quantitative and Qualitative Disclosures about Market Risk

Not applicable

 

37


Table of Contents

Item 4T—Controls and Procedures

Disclosure Controls and Procedures

The Company under the supervision and with the participation of management, including the Chief Executive Officer (principal executive officer) and the Chief Financial Officer (principal financial officer), evaluated the effectiveness of our “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)) as of June 30, 2010.

Based on that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded that our disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) were effective as of June 30, 2010 to provide reasonable assurance that (1) information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and (2) information required to be disclosed by us in the reports we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosures.

The effectiveness of any system of controls and procedures is subject to certain limitations, and, as a result, there can be no assurance that our controls and procedures will detect all errors or fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system will be attained.

Changes in Internal Control Over Financial Reporting

There has been no change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter ended June 30, 2010 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

PART II – OTHER INFORMATION

Item 1—Legal Proceedings

The Company is involved in various legal proceedings, including product liability and workers’ compensation matters which have arisen in the normal course of operations. The Company has product liability insurance with self insurance retention that ranges from $50 thousand to $1 million. Certain cases are at a preliminary stage, and it is not possible to estimate the amount or timing of any cost to the Company. However, the Company does not believe that these contingencies, in the aggregate, will have a material adverse effect on the Company. When it is probable that a loss has been incurred and possible to make a reasonable estimate of the Company’s liability with respect to such matters, a provision is recorded for the amount of such estimate or the minimum amount of a range of estimates when it is not possible to estimate the amount within the range that is most likely to occur.

Our insurance carriers have denied coverage for two product liability claims. The Company believes the insurance companies’ basis for denial of coverage is improper. As such, the Company has engaged outside legal representation to challenge the insurance companies’ denial of coverage. Currently, the Company is engaged in a declaratory judgment action which contests the denial of coverage.

Item 1A—Risk Factors

The Company’s risk factors can be found in the Company’s most recent Annual Report on Form 10-K filed with the SEC. No material changes in such risk factors have occurred, except as noted below:

A substantial portion of our revenues are attributed to a limited number of customers which may decrease or cease purchasing any time.

A substantial portion of our revenues historically have been attributed a limited number of customers. If sales to current key customers cease or are materially reduced we may not attain sufficient orders from other customers to offset any such losses or reductions.

 

38


Table of Contents

Item 2—Unregistered Sales of Equity Securities and Use of Proceeds.

The Company’s credit agreement with Comerica Bank directly restricts the Company’s ability to declare or pay dividends without Comerica’s consent. In addition, pursuant to the Company’s credit agreement with Comerica, the Company must maintain a minimum tangible effective net worth, as defined in the credit agreement. This tangible net worth requirement takes into account dividends paid to the Company’s shareholders. Therefore, in determining whether the Company can pay dividends, or the amount of dividends that may be paid, the Company will also have to consider whether the payment of such dividends will allow the Company to maintain the tangible net worth requirement in the Company’s credit agreement.

Item 3—Defaults Upon Senior Securities

Not applicable.

Item 4—(Removed and Reserved)

Not applicable.

Item 5—Other Information

On June 8, 2010, the Company entered into a lease agreement with Aldrovandi Equipment Limited, a corporation incorporated under the laws of the Province of Ontario, for the Company’s 85,000 sq. ft. facility located in Woodbridge, Ontario. Pursuant to the terms of the lease, the Company makes monthly lease payments of $38,000. The Company is also responsible for all the associated operations expenses, including insurance, property taxes, and repairs. The initial term of the lease will expire on November 30, 2014, provided that the Company has a right to renew the lease for an additional five years upon the same terms and conditions except that the annual lease payments for the additional five year period shall be mutually agreed upon by the parties.

This Lease replaces a lease of the premises that expired on November 30, 2009. The prior lease was with the same lessor and was on substantially similar terms.

The description of the terms and conditions of the lease set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text of the lease as attached as Exhibit 10.20 to this Quarterly Report on Form 10-Q and incorporated herein by this reference.

Item 6—Exhibits

See the Exhibit Index set forth below for a list of exhibits included with this Quarterly Report on Form 10-Q.

EXHIBIT INDEX

 

Exhibit
Number

  

Exhibit Description

   Exhibit
No.
10.1    Employment Agreement, dated June 16, 2009, between Manitex International, Inc. and David J. Langevin. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on June 17, 2009)   
10.2    Employment Agreement, dated June 16, 2009, between Manitex International, Inc. and Andrew M. Rooke. (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed on June 17, 2009)   
10.3    Employment Agreement, dated June 16, 2009, between Manitex International, Inc. and David H. Gransee. (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed on June 17, 2009)   

 

39


Table of Contents

Exhibit
Number

 

Exhibit Description

   Exhibit
No.
10.4   Amendment No. 4 to Second Amended and Restated Credit Agreement and Amendment to Revolving Credit Note, dated July 9, 2009, by and between Manitex International, Inc., Manitex, Inc., and Comerica Bank, as amended. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on July 10, 2009)   
10.5   Master Revolving Note in the principal amount of $20.5 million, dated July 9, 2009, by and between Manitex, Inc. and Comerica Bank. (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed on July 10, 2009)   
10.6   Amendment No. 4, effective as of July 9, 2009, to the Master Revolving Note dated December 29, 2006, as amended, between Manitex Liftking, ULC and Comerica Bank. (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed on July 10, 2009)   
10.7   Master Revolving Note in principal amount of $4.5 million, dated July 9, 2009, by and between Manitex LiftKing, ULC and Comerica Bank. (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed on July 10, 2009)   
10.8   Assignment and Assumption agreement between Comerica Bank, Quantum Value Management LLC, Manitex International, Inc. and Manitex, Inc. date July 9, 2009. (incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed on July 10, 2009)   
10.9   Installment Note in principal amount of $1,483,299, dated July 9, 2009, by and between Manitex International, Inc., Manitex, Inc. and Comerica Bank. (incorporated by reference to Exhibit 10.6 to the Current Report on Form 8-K filed on July 10, 2009)   
10.10   Stock Purchase Agreement, dated July 10, 2009, by Manitex International, Inc. and Avis Industrial Corporation. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on July 16, 2009)   
10.11   Promissory Note in principal amount of $2,750,000, dated July 10, 2008, payable by Manitex International, Inc. to Avis Industrial Corporation. (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed on July 16, 2009)   
10.12   Security Agreement dated July 10, 2009, between Manitex International, Inc. and Avis Industrial Corporation. (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed on July 16, 2009)   
10.13   Lease Agreement, dated July 10, 2009, by and between Manitex International, Inc., Badger Equipment Company and Avis Industrial. (incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed on July 16, 2009)   
10.14   Amendment to Note (Master Revolving Note dated July 9, 2009) effective May 5, 2009. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on May 11, 2010)   
10.15   Amendment No. 6 to Note (Master Revolving Note dated December 29, 2006, as amended or the “Canadian Note”) effective May 5, 2010. (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed on May 11, 2010)   
10.16   Amendment No. 2 to Note (Master Revolving Note dated July 9, 2008 or the “American Note”) effective May 5, 2010. (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed on May 11, 2010)   
10.17   Letter agreement dated May 5, 2010. (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed on May 11, 2010)   
10.18   Master Revolving Note dated May 5, 2010. (incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed on May 11, 2010)   
10.19   Lease Agreement, dated May 26, 2010, between Manitex International, Inc., and KB Building, LLC. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed   
10.20 (1)   Lease dated June 8, 2010 between Aldrovandi Equipment Limited and Manitex Liftking, ULC for facility located in Woodbridge, Ontario.   

 

40


Table of Contents

Exhibit
Number

  

Exhibit Description

   Exhibit
No.
31.1    Certification by Chief Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.   
31.2    Certification by Chief Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.   
32.1    Certification by Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted by Section 906 of the Sarbanes-Oxley Act of 2002.   

 

41


Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

August 13, 2010   By:  

/ S /    D AVID J. L ANGEVIN        

    David J. Langevin
   

Chairman and Chief Executive Officer

(Principal Executive Officer)

August 13, 2010

  By:  

/ S /    D AVID H. G RANSEE        

    David H. Gransee
   

Vice President and Chief Financial Officer

(Principal Financial and Accounting Officer)

 

42

Exhibit 10.20(1)

THIS INDENTURE OF LEASE, made as of the 15th day of November, 2009

IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT,

BETWEEN:

 

ALDROVANDI EQUIPMENT LIMITED a Corporation incorporated under the laws of the Province of Ontario

(hereinafter called the “ LESSOR ”)

OF THE FIRST PART

-and-

MANITEX LIFTKING, ULC a Corporation incorporated under the laws of the Province of Alberta,

(hereinafter called the “ LESSEE ”)

OF THE SECOND PART

WITNESSETH:

 

1.

PREMISES

   IN CONSIDERATION of the rents, covenants and agreements hereinafter reserved and contained on the part of the Lessee to be paid, observed and performed, the Lessor hath demised and leased and by these presents doth demise and lease unto the Lessee, its successors and assigns, all that messuage or tenement, including all improvements thereto, the premises outlined on the Plan attached hereto as Schedule “A” (hereinafter referred to as the “Demised Premises”), and together with the right to use the common outside areas and facilities in common with other users of the building. The Demised Premises comprise as hereafter outlined, which building, adjacent lands and common areas are hereinafter referred to as the “Building”, “Buildings”, or “Development”, and contain a rental area of approximately 94,509 square feet.

 

2.

TERM

   TO HAVE AND TO HOLD the Premises for and during the term of five (5) years (herein called the “Term”), to be computed from and inclusive of the 30th day of November, 2009 and ending on the 29th day of November, 2014.

The Lessee acknowledges and agrees that it has inspected the Demised Premises and agrees to accept same in an “as-is” condition.

 

3.

RENT

   YIELDING AND PAYING THEREFOR yearly and every year during the term hereby granted, unto the Lessor a base rental rate calculated as follows:


2

 

7135 Islington Avenue, Woodbridge, Ontario

  

- 61,636 sq. ft @ $4.70/sq ft

19 Vinyl Court, Woodbridge, Ontario

  

- 32,873 sq. ft @ $4.70/sq ft

 

 

Years

  

Annual

  

Monthly

  

Per Square Foot

1-5

   $444,192.30    $37,016.03    $4.70       

 

AREA COVERED BY HIGH STEEL STRUCTURE AND WITH TWO OVERHEAD CRANES on with a capacity of 20 tons, one with a capacity of 12 tons at 191 Vinyl Court, Woodbridge, Ontario – 10,400 square feet at $3.40.

 

Years

  

Annual

  

Monthly

  

Per Square Foot

1-5

   $35,360.00    $2,946.67    $3.40       

 

ACCORDINGLY, the total monthly rental payments commencing on November 30, 2009 shall be $39,962.70.

Each monthly installment is to be paid in advance without deduction on the 1 st day of each month in each year during the term hereby demised as the Lessor’s office at 7135 Islington Avenue, Woodbridge, Ontario L4L 1V9 or at such other place as the Lessor may hereafter from time to time direct, together with additional rent hereinafter reserved. The Lessee shall provide to the Lessor on the commencement date of the Lease and on each anniversary date thereafter twelve (12) post-dated cheques for rental payments for the following year. In the event of a tenancy commencing or termination on other than the first of the month, the rent for pars month shall be prorated.

 

4.

LESSEE’S COVENANTS

The Lessee covenants and agrees with the Lessor as follows:

 

 

(a)

To pay rent.

Use

 

 

(b)

To use the premises only for the manufacturing and storage of fork lifts and related equipment and for no other purpose.

Additional Rent

(c)    This Lease shall be absolutely net to the Lessor and that the Lessee shall pay for its own account, and without any variation, set-off or deductions, all costs, expenses, rate, taxes and charges in any way relating to the Demised Premises and the business of the Lessee as well as the Lessee’s proportionate share of all taxes, insurance premiums, utilities and other rates, maintenance, accounting fees and other costs, expenses and charges relating to the operation of the building without the duplication and other than the payments of any interest or principal required to be paid by the Lessor under any mortgage related to the building, any income taxes of the Lessor, the cost of any repairs property attributable to capital account other than as specifically set out herein to be the Lessee’s responsibility, or amounts recovered by the Lessor from insurance proceeds or warranty claims relating to any cost which has been charged or is otherwise chargeable as additional rent. Without restricting the generality of the above, the Lessee shall pay to the Lessor in each and every year during the term hereof, as additional rent:


3

 

Realty Taxes

(i)        To pay the realty taxes, local improvement rates and other similar charges assessed and levied against the Demised Premises provided at the Lessor’s option, the Lessee shall pay its proportionate share of the amount of all taxes, rates, duties and assessments whatsoever, including local improvement rates, or similar taxes, whether municipal, parliamentary or otherwise, now charged, levied, rated or assessed, or hereafter to be charged, levied, rated or assessed against the buildings whether such taxes are levied at first instance against the Lessor or Lessee or any similar taxes now in existence or contemplated at any time during the term hereof by any competent governmental or municipal body in additional to, or in lieu of, the taxes, rates, duties or assessment hereinbefore referred to. In the event that the Lessee wishes to appeal its realty or business tax assessment, it shall also appeal the assessment or the Development, it shall give prior written notice to the Lessor, and take all steps to ensure that the assessment of the Development, Lessor or other Lessees are not increased as a result of its appeal. The Lessee indemnifies the Lessor from any misallocation or assessment which may occur as a result of its appeal;

Leasehold Taxes

(ii)        If the taxes in respect of the building upon which the demised premise are situate shall be increased by reason of any installations made in or upon, or any alteration made in or to the Demised Premises by the Lessee, the amount of such increase;

Separate School Taxes

(iii)        If the Lessee or any person, firm or corporate occupying the demises premises or any part thereof shall elect to have the Demised Premises or any part thereof assessed for separate school taxes, the amount by which the separate school taxes exceed the amount which would be payable by the Lessor for school taxes, had such election not have been made, provided that if the Lessee so elects and the separate school taxes paid are less than public school taxes in any year of the term hereby ranted, the amount of school tax payable by the Lessee shall be reduced Accordingly;

Utilities, Taxes, etc. Affecting Common Areas

(iv)        its proportionate share of the cost of domestic water and other utilities supplied to the common areas, and of nil taxes, fines, duties and assessments whatsoever, including local improvement rate now charged, levied, rates or assessed, or hereafter to be charged, levied, rated or assessed upon or in respect of the common areas, and including, but without limiting the generality of the foregoing, its proportionate share of all business taxes, if any, from time to time payable by the Lessor in respect of the common areas and facilities, or any part thereof; provided if such taxes, rates, duties and assessments, including local improvement rates are assessed separately to pay in accordance with such separate assessment;


4

 

Lessor’s Insurance

(v)        its proportionate share of the total annual net costs and expenses of insuring the lands, buildings, improvements and equipment and other property in the Development and the common areas and futilities, owned by the Lessor or for which the Lessor is legally liable, form time to time, in such manner and form, with such companies and such coverage and in such amounts as the Lessor, or the Mortgagee, from time to time, determines including without limitation, insurance against:

(1)        Any risks of physical loss or damage to all property owned by the Lessor relative to the Development;

(2)        Damage to air-conditioning and heating equipment and miscellaneous electrical apparatus on a broad form blanket repair and replacement basis;

(3)        Loss of insurable gross profit attributable to all perils insured against by the Lessor or commonly insured against by prudent Lessors, including loss of all rent receivable from tenants in the Development in accordance with the provisions of their leases including minimum rent, percentage rent and additional rent in such amount or amounts as the Lessor or the Mortgagee from time to time requires;

(4)        Third party liability claims including the exposure for personal injury, bodily injury, property damage occurrence, including all contractual obligations coverage and including actions of all authorized employees, subcontractors and agents while working on behalf of the Lessor; and

(5)        Any other from of insurance the Lessor or its Mortgagee reasonably requires from time to time for insurable risks and in amounts against which a prudent landlord would protect itself.

 The Lessee shall not do or permit to be done any act of or thing whereby the insurance coverages or any of them hereinbefore contemplated may be increased in premium or cancelled by the insurer, or the Demised Premises shall be rendered uninsurable, and if by reason of any act done or permitted or omission, as the case may be, by the Lessee, the said insurance coverages or any of them shall be increased in premium, then the Lessee shall be liable to pay all of such increased in premium, with respect to the entire coverages and this notwithstanding that the Lessees occupies only a portion of the building or buildings covered by such insurance coverages, and if the Demised Premises shall be rendered uninsurable or if the said insurance coverages or any of them shall be cancelled by reason of any act done or permitted, or omission, as the case may be, by the Lessee, and shall not be susceptible of being replaced then the Lessor, after giving the Lessee at least seven (7) days without which to replace the insurable coverage or coverages shall, at its absolute discretion have the right to determine that the term hereof has expired and in such event the Lessee shall deliver up possession of the demises premise as if the term of this lease had expired;

Cleaning and Maintenance

(vi)        its proportionate share of the costs incurred by the Lessor in cleaning, repairing, replacing and maintaining the common areas and facilities as hereinbefore defined including without limiting the generality of the foregoing, snow removal, gardening, supervision, policing, law sprinkler maintenance and replacement, sprinkler alarm monitoring, salting of driveways and walkways painting the outside of the building and maintenance including repairs and maintenance and replacement of paving, including re-striping and signing where necessary, curbs, walkways, landscaping, and drainage as may from time to time become necessary and other reasonable costs which may be incurred with respect to the said outside common areas and facilities and the cost of any security systems which the Lessor deems necessary for the operation of the Development;


5

 

The manner in which the said outside areas and facilities shall be maintained shall be at the sole discretion of the Lessor provided that the said manner shall be reasonable and in keeping with the maintenance of an industrial premises of a similar size, location and nature having regard for the then age of the said building;

Personnel

(vii)        its proportionate share of salaries of all personnel including on-site supervisory personnel employed to carry out the maintenance and operation of the Development and the common areas and facilities, including contributions and premiums towards usual fringe benefits, unemployment and Worker’s Compensation insurance, pension plan contributions and similar premiums and contributions;

Domestic Water

(viii)        its share of water usage for the building in which the Unit is located which shall be apportioned by the Lessor in consultation with its consulting engineer and acting reasonably, and provided that the Lessee or Lessor may, at its option and at the sole expense of the Lessee, install a separate water meter in which case the Lessee shall pay only such amount as is actually metered. The installation costs of such separate meter shall be collectable from the Lessee as additional rent;

Heating, Ventilating and Air-Conditioning

(ix)        its share, as reasonably apportioned by the Lessor, of the cost of an annual preventative maintenance contract for all heating, ventilating and air-conditioning equipment installed in the Development if the Lessor chooses to arrange for such contract;

(x)        its share, as reasonably apportioned by the Lessor, of the annual costs of repairs, including service charges and the cost of replacement parts, for all heating, ventilating and air-conditioning equipment installed in all building of the Development;

(xi)        its share, as reasonably apportioned by the Lessor, of the estimated cost of replacing all heating, ventilating and air-conditioning equipment installed in all buildings in the Development amortized over the projected useful life of such equipment;

Provided that in the alternative to the charges set out in (ix), (x), and (xi), the Lessor at its option may require that the Lessee be responsible for the maintenance, repair and replacement of all heating, ventilating and air-conditioning equipment within the Demised Premises.

Capital Repairs

(xii)        its proportionate share of the costs of maintenance, repairs or replacements to items of a capital or structural nature which by their nature require periodic maintenance, repair, or replacement or the purpose of which is to reduce the operating costs of the Development. The Lessor may in the alternative, at its discretion exercised reasonably, amortize the costs of these items over the estimated life of the item repaired or replaced and the Lessee shall in addition pay interest on the unamortized cost at the rate of two (2%) percentage points over the prime lending rate of the Lessor’s Bank; and,


6

 

Administrative

    (xiii) an administrative fee of fifteen percent (15%) of the total of the additional rental as specified in the Lease, excluding realty taxes;

Business Taxes

(d)        To pay as and when the same become due, and to save the Lessor in all respects harmless with respect thereto, all business taxes from time to time levied against or payable by the lessee in respect of the lessee’s occupancy of the Demised Premises;

Proportionate Share Definition

(e)        Whenever in this Lease, reference shall be made to the Lessee’s proportionate share of any taxes, costs, charges or expenses, the same shall be that proportion which the rentable area of the premises hereby demised to the Lessee bears to the total rentable area (including the premises hereby demised) of the entire buildings presently situate on the lands forming the Development, including any future additions thereto, but excluding any service areas for the general benefit of all Lessees of the Development;

Common Areas and Facilities

(f)        Whenever in this Lease, reference shall be made to the common outside areas and facilities, the same shall mean all of the lands forming the Development not for the time being covered by the buildings and utility and/or refuse rooms (other than any service area for the general benefit of all Lessees of the Development) and shall include any improvements (apart from structures erected by the Lessee) thereon and thereto, such as tool sheds, lighting standards and parking signs and marking areas designated by the Lessor for use by particular Lessees;

Additional Rents

(g)        The payments required to be made by the Lessee to the Lessor under the provisions of subparagraph (c) hereof shall be paid by the Lessee in equal monthly installments to be estimated by the Lessor on the dates that the rent is payable pursuant to the terms of this Lease, and to be adjusted upon the Lessor finally determining the actual amount of such payments. Any amounts owing by this lease shall be paid thirty (30) days after demand;

Utilities

(h)        In each and every year during the term hereof to pay, satisfy and discharge directly or indirectly all charges in connection with electrical current, gas, rental charges for gas or electrically-operated hot water heaters and other public or private utilities or services extraordinary as well as ordinary, supplied at any time to the Demised Premises;


7

 

Indemnity for Non-payment by Lessee

(i)        To indemnify and keep indemnified the Lessor in respect of non-payment of all losses, costs, charges, penalties and expenses occasioned by, or arising from the non-payment of any and every tax, rate, assessment, charge, expense or fee, including any business or similar tax assessed against the Lessee of any subtenant or licensee or other persons occupying the Demised Premises or any part thereof, and provided that the same shall be a charge o the Demised Premises or in any way the ultimate responsibility of the Lessor, unless the same shall have already been paid by the Lessee to the Lessor, and provided that the same shall not be of a kind personal to the Lessor, such taxes on the income of the Lessor;

Repairs and Maintenance

(j)        At its own expense, to properly carry out all repairs, maintenance, replacements, and painting of the demises premises and of all machinery and equipment situate therein or thereon (both inside and outside) and including any stairs or platforms leading thereto and to repair and maintain the Demised Premises including, without limited the generality of the foregoing, subject to clauses 4(c)(ix), (x) and (xi) hereof, the air-conditioning and heating units, boilers and pressure vessels, if any, sprinkler system and plate glass thereon. Provided, however, the Lessor shall have the option of carrying out such repairs, replacement and maintenance on behalf of the Lessee and collecting the cast thereof together with an administration fee as additional rent;

Lessee’s Insurance

(k)        At its own expense, to take out and maintain property damage, public liability, boiler and plate glass insurance as well as insurance against theft, in the names of the Lessor and the Lessee, and in form, amount, and with insurance carriers satisfactory to the Lessor and containing a waiver of subrogation against the Lessor. The Lessee shall renew each policy’s insurance not less that fourteen (14) days prior to the expiration of the term thereof, and forward to the Lessor certificates of insurance evidencing the policies in effect;

Comply With By-laws, etc.

(l)        To promptly comply with and conform to the requirements or all applicable statutes, laws, by-laws, regulations, ordinances and orders from time to time, or at any time in force during the term hereof and affecting the condition, equipment, maintenance, use or occupation of the Demised Premises, and with every applicable regulation, order and requirement of The Canadian Fire Underwriters Association, or any body having a similar function or of any liability or fire insurance company by which the Lessor and Lessee or either of them may be insured at any time during the term hereof;

Notice to Lessor of Defect

(m)        In the event of the observance of any apparent structural defect or material damage to the Demised Premises by any cause, to give notice in writing to the Lessor of such defect or damage forthwith upon the same becoming known to the Lessee; provided that if such defect or damage becomes known to the Lessee or reasonably should have been observed by the lessee and the Lessee fails to give notice hereof to the Lessor, the Lessee shall be liable for such of the costs incurred by the Lessor in repairing the said defect or damage as can be shown to be directly attributable to the actions of the Lessee and those for whom I law, the Lessee is responsible (including failure to give such notice) after such defect or damage become know to the Lessee or reasonably should have been observed by the Lessee;


8

 

Entry to View State of Repair

(n)        to permit the Lessor at all reasonable times and upon reasonable notice (and at all times in cases of emergency) to enter upon and view the state of repair and maintenance of the Demised Premises, and to inspect the heating and air-conditioning units, the plumbing, boilers and pressure vessels thereon, and to comply with all reasonable requirements of the Lessor with respect to the care, maintenance and repair thereof;

Surrender

(o)        Upon the expiration of the term hereby granted, the Lessee will peaceably surrender, quit and deliver up the Demised Premises to the Lessor in a good state of repair and maintenance reasonable wear and tear excepted, provided the Lessor may elect that any or all installations made or installed by or on behalf of the Lessee to be removed upon expiration of the term and it shall be the lessee’s obligation to restore the leased premised to the condition they were in previous to the said alternation, installation, addition, partition, etc. Said removal and restoration shall be at the sole expense of the said Lessee;

Keep Clean

(p)        At its own expense to keep entrance ways and all steps and platforms leading to the Demised Premises clear of all snow, ice and debris;

Nuisance

(q)        That it will not carry on, or permit to be carried on, in or about the Demised Premises any business or activity which shall be deemed upon reasonable grounds to be a nuisance, nor will it omit to do or permit to be omitted to be done anything in respect of the Demised Premises, the omission of which shall upon reasonable grounds, be deemed to be a nuisance;

Inspection

(r)        During the term hereby granted the Lessor and as prospective purchasers, mortgagees or lessees may inspect the Demised Premises or any parts thereof at reasonable times and upon reasonable notice on producing an order to that effect signed by the Lessor, if any, and provided that the Lessee may elect to cause its employees or agents to be present at the time of such inspection;

Heating

(s)        Subject to clauses 4(c)(ix), (x) and (xi) hereof, to assume the sole responsibility for and the cost of the heating or air-conditioning of the Demised Premises including replacement and repair to heating, air-conditioning and ventilating system when required;

Assignment or Sub-letting

(t)(i)    The Lessee will not transfer or assign the Lease or sub-let or part with the possession or all or part of the Demised Premises without prior written consent of the Lessor, which consent shall not be unreasonably or arbitrarily withheld or delayed; provided however, such consent to any assignment or subletting shall not relieve the Lessee from its obligations for the payment for rent and for the full and faithful observance and performance of the covenants, terms and conditions herein contained. The Lessee shall have the right without the consent of the Lessor, to assign this Lease to a company incorporated or to be incorporated by the Lessee provided that the Lessee holds voting control of the company but otherwise a change in voting control of the Lessee shall constitute a transfer.


9

 

    It shall not be unreasonable for the Lessor to require as a condition of granting consent, the giving of personal guarantees and/or the provision of additional security for the payment of rents. The Lessee shall pay to the Lessor any consideration received by it by way of increased rental or by other payment attributable to the Demised Premises in excess of the fair market value of the Lessee’s fixtures.

(t)(ii)    Provided further and notwithstanding paragraph 4(t)(i), if the Lessee proposes to assign this Lease or sub-let the Demised Premises, the Lessee shall send to the Lessor, a notice setting forth the name and address of the proposed assignee or sub-tenant and all the terms and conditions of the proposed assignment or sub-lease, and the Lessor within fifteen (15) days form the submission of such notice by the Lessee may elect to terminate this Lease by giving to the Lessee a notice of intention to terminate, fixing a date of termination not sooner than the date the sub-tenant or assignee proposes to occupy the Demised Premises and the lessee shall deliver up vacant possession of the Demised Premises on such date of termination and the Lease shall terminate and come to an end (including any liability of the Lessee in regard thereto, and adjustments shall be made in rent, taxes and other charges payable by any party under this Lease).

(t)(iii)    No assignment or sublease of the within Lease shall be valid unless, the lessee shall deliver to the Lessor:

(1)     Duplicate original of such assignment or sublease duly executed by the Lessee;

(2)     Instrument duly executed by the assignee or subtenant, in a form satisfactory to the Lessor wherein such assignee shall assume the Lessee’s obligations for the payment of rent and for the full and faithful observance and performance of the covenants, terms and conditions herein contained; and,

(3)     Payment by the Lessee of the Lessor’s standard consent fee.

Not Alter Structure

(u)        The Lessee will not place anything on the roof or in any way make any opening in the roof for stacks or other purposes, or in any way alter the walls or structures of the Demised Premises without the written consent of the Lessor, which my be unreasonably or arbitrarily refused.

Refuse

(v)        The Lessee will not use any garbage or other containers unless approved by the Lessor or allow any ashes, refuse, garbage or other loose materials to accumulate in or about the Demised Premises or stock or cause to be stored outside of the Unit any of its inventory or stock-in-trade or raw materials.


10

 

Plate Glass

(w)        The Lessee shall pay the cost of replacement with as good quality and size of any glass broken on the Demised Premises including outside windows and doors of the perimeter of the Demised Premises (including perimeter windows in the exterior walls) during the continuance of this Lease, unless the glass shall be broken by the Lessor, its servants, employees or agents on its behalf.

Repairs to Common Systems

(x)        The Lessee acknowledges that the lands and premises hereby demised form part of a larger building and that the whole of the building of which the Demised Premises form part will be served by common drainage, water systems, as well as electrical systems and gas or other fuel systems and in the even that the repairs are necessary to any of such systems in any portion of the entire building of which the Demised Premises form part, then the Lessee covenants to forthwith pay to the Lessor its proportionate share of the total cost of such repairs forthwith upon receiving written demand therefore; and the Lessor’s servants or agents shall have reasonable access to the Demised Premises for the purpose of making the necessary repairs herein contemplated without liability for any disturbance, or business interruption which may be caused in so doing, and for great certainty it is expressly agreed that if any of such common systems that have been damaged or shall have been inoperative by reason of the negligence of the lessee, its servants or agents, then the entire cost of repairing the same shall be bore by the Lessee.

Damage to Party Walls

(y)        The Lessee acknowledges that one (1) or more of the walls of the Demised Premises are party walls which may be used as to the portion adjacent in the Demised Premises by the adjoining Lessee, or by the Lessor, and the Lessee covenants and agrees that as to any repairs required to the said party walls which are the responsibility of the Lessee hereunder, it will bear one-half (1/2) of the cost of such repairs, unless such repairs are necessitated wholly by reason of the negligence, acts or omissions of the lessee or its servants or agents, in which event the Lessee shall be responsible for the entire cost of such repairs, and in the event that repairs are made necessary by reason of the negligence of the adjoining lessees, then the cots of repairs shall not be borne by the lessee, and the Lessee covenants that it will forthwith pay the cost of such repairs to the said party walls for which it responsible hereunder forthwith upon receiving written demand therefore.

Loading and Unloading

(z)        All loading and unloading of merchandise, supplies, unloading materials, garbage, refuse and other chattels with the except of the Lessee’s general office supplies shall be made only through or by means of the Shipping doors, so designated by the Lessor; and

Goods and Services Tax

(aa)        The Lessee shall pay when due any sales tax, Goods and Services Tax, Harmonized Sale Tax, value-added tax, business transfer tax or similar rates, duties, assessments or levies on the rent payable by the lessee; whether payable, levied or assed directly to the lessee or to the Lessor on account of the rents payable by the Lessee. A failure to pay the Goods and Services Tax shall be a default of the Lease and shall be treated as if it were a failure to pay rent but the Goods and Services Tax shall not be deemed to be real for the purpose of calculating the amount of Goods and Services Tax exigible.


11

 

Fixtures

5.        The Lessee shall have the right, subject to the other provisions hereof to install a pint spray booth, bake over and other equipment normally associates with auto repair. Provided that the Lessee, when not in default hereunder, may remove its trade fixtures, provided that the Lessee shall not remove or carry away from the Demised Premises or common outside areas, any plumbing, heating, ventilating or lighting equipment, wiring or electrical panels and services or other building services; provided the lessee shall repair any damage occasioned by the installation or the removal of its fixtures.

 Seizure and Bankruptcy

6.        PROVIDED that if the term hereby created or any of the goods and chattels of the Lessee shall at any time seized or taken in execution or in attachment by any creditor of the Lessee or if without the consent of the Lessor, the Demised Premises shall become vacant or the Demised Premises shall not be used for a period of fifteen (15) days or if a Writ of Execution shall be issued against the goods or chattels of the Lessee, or if without the prior written consent of the Lessor the Lessee shall execute any chattel mortgage or bill of sale of any of its goods or chattels other than in the ordinary course of its business, or any order made for the winding up of the Lessee or for the appointment of a receiver or receiver and manager or a receiver or manager is appointed pursuant to a mortgage, debenture or other encumbrance affecting the goods, chattels or other personal property of the Lessee, or if the Lessee shall make any assignment for the benefit of creditors or commit any other act of bankruptcy or make a proposal as defined in the Bankruptcy and Insolvency Act of Canada or any amendment thereto, or becoming a bankrupt or insolvent shall take the benefit of any statue which may be in force for bankrupt or insolvent persons, shall attempt to abandon the Demised Premises or to sell or dispose of its goods or chattels then the current month’s rent, together with the rent for the three (3) months next enduring, (and for the purpose hereof rent shall include all monies designated to be paid as additional rent, including, but without limiting the generality at the foregoing, against billing on account of taxes, insurance premiums and maintenance of common outside areas and facilities), shall immediately become due and payable on presentation of invoices and the said term shall at the option of the Lessor forthwith become forfeited and determined, in which event the Lessor may re-enter and take possession of the Demised Premises as though the Lessee, or any occupant or occupants of the Demised Premises was or were holding over after the expiration of the term without any right whatsoever, provided that no action by the Lessor in so doing shall be deemed to relieve the Lessee of its obligations for the payment of rent and additional rent or any other monies payable hereunder.

Distress

7.        PROVIDED that in case of removal by the Lessee of its goods and chattels from the Demised Premises, the Lessor may follow the same for thirty (30) days, in the same manner as is provided for in the Landlord and Tenant Act; and notwithstanding anything contained in the Landlord and Tenant Act or any other statute or any other subsequent legislation, none of the goods or chattels of the Lessee at any time during the continuance of the term hereby created on the Demised Premises shall be exempt from levy by distress for rent in arrears, and that upon any claim being made for an exemption by the Lessee on a distress made by the Lessor this Covenant may be pleaded as an estoppel against the Lessee in any action brought to test the right to the levying upon any such goods, the Lessee waiving as it hereby does any exemptions form distress which might have accrued to the Lessee under the provisions of the Landlord and Tenant Act. Provided further that in the event of default, the Lessor may re-enter the premises by use or force or change the locks in order to effect a distress or to secure the Lessee’s property and the Lessee shall be hereby estopped from claiming an illegal distress by reason thereof.


12

 

Re-entry

8.        In the event the Lessee shall be in default of any of its covenants hereunder including the covenant of the Lessee to pay rent or additional rent, whether legal demand has been made or not, the Lessor may at its option either enter into and upon the Demised Premises or any part thereof in the name of the whole and have again, repossess and enjoy the same as if its former estate and the said Lease shall thereupon terminate or itself take steps and do to or cause to be done such things as may be necessary to remedy and correct such defaults, or to re-let the same as agent of the lessee and claim against the Lessee for damages suffered. Provided further that I the event that the Lessor shall be entitled to, and shall elect to make a re-entry as hereinbefore provided for, any re-entry or other action so taken shall not be deemed to relieve the Lessee of the obligation to pay rent and other monies payable as rent hereunder and such rent and other monies payable as rent hereunder and such rent and other monies payable as rent in accordance with the provision hereof shall continue to accrue and be payable until such time as the Lessor is able to re-let the premises, or otherwise deal with the same in such manner that it shall not sustain any loss should the Lessee thereafter fail to pay the rent and other monies payable as rent or otherwise under this lease. Provided further that in addition to all other rights hereby reserved to it, the Lessor shall have the right to re-enter the Demised Premises as the agent of the Lessee either by force or otherwise, without being liable for any prosecution therefore, and to re-let the whole or any portion of the Demised Premises for any period equal to or greater or less than the remainder of the then current term of the Lease and to receive the rent therefore, said rent to be any sum which it may deem reasonable, to any lessee which it may deem suitable and satisfactory, and for any use purpose which it may deem appropriate and in connection with any such lease, the Lessor may make such changes in the character of the improvements or the Demised Premises as the Lessor may determine to be appropriate or helpful in effecting such Lease; but in no event shall the Lessor be under any obligation to re-let the Demised Premises in whole or in part for any purpose which the Lessor may regard as injurious to the Demised Premises, or to any lessee which the Lessor, in the exercise of reasonable discretion, shall deem objectionable and to apply any rent derived from so re-letting the Demised Premises upon account of the rent due hereunder, and the lessee shall remain liable to the Lessor for the deficiency, if any, it being the intention hereof that nothing herein contained and no entry made by the Lessor hereunder shall in no way release the Lessee from the payment of the rent hereby reserved during the term hereof being such sum as may be realized by the Lessor by such re-letting or by the proceeds of any distress made by the Lessor against the Lessee; and provided that the Lessor shall not in any event be required to pay to the Lessee any surplus of any sums received by the Lessor on a re-letting of the Demised Premises in excess of the rent reserved hereunder.

Overholding

9.        Provided that should the Lessee remain in possession of the Demised Premises after the termination of the original term hereby created, with the Lessor’s consent in writing, without other special agreement, it shall be as a monthly Lessee on a monthly base rental equal to the annual payable during the last month of the term hereof, plus an increase of eight percent (8%) compounded for each year of the most recently expired term of the Lease and such amount shall be payable on the first day of each and very month and subject in other respects to the terms of this Lease, including those provisions requiring the payments or additional rent in monthly instalments. Provided if the Lessee shall occupy the Demised Premises during any renewal term before the rental rate for such renewal period has been determined pursuant to the terms of the Lease, the Lessee shall pay rent at a rate estimated by the Lessor to be the rental payable during the lost month of the term hereof, plus an increase or eight percent (8%) compounded for each year of the most recently expired term of the lease and such amount shall be payable on the first day of each and every month and subject in other respects to the terms of this Lease, including hose provisions requiring the payments of additional rent in monthly instalments. Such payments shall be adjusted between the Lessor and the Lessee within fifteen (15) days of the date when the actual rate is determined.


13

 

LESSOR’S COVENANTS

10.        The Lessor covenants with the Lessee as follows:

Quiet Enjoyment

    (a)        For quiet enjoyment;

Alterations

    (b)        That the Lessee shall have the right from time to time to make alterations and changes in the interior of the Demised Premises as it may find necessary for its purposes and at its own expense, provided that the plans for such alterations or changes shall be delivered to the Lessor and the consent of the Lessor in writing shall first be obtained, such consent not to be unreasonably or arbitrarily withheld; provided that upon the termination of this Lease, the Lessee, if requested by the Lessor, shall restore the interior of the Demised Premises to its former condition immediately prior to the installation of such alterations or changes, reasonable wear and tear excepted, not inconsistent with the maintenance of the building of which the Demised Premises forms a part as a first class industrial premises having regard for the then age of the building, including the restoration of such standard futures as may have been installed by the Lessor, and if not so requested, any such changes or alterations should become the property of the Lessor.

Right to Let

(c)        That the Lessor has in it good right, full power and absolute authority to let the Demised Premises with their appurtenances according to the true intent of this indenture, and that it will execute such further assurances with respect thereto as may be reasonably required.

Damage and Destruction

11.        PROVIDED and it is hereby expressly agreed that if and whenever during the terms hereby demised the building erected on the lands shall be destroyed or damaged then and in every such event:

    (a)        if the damage or destruction is such that the building of which the demised premises forms part of is rendered wholly unfit for occupancy or it is impossible or unsafe to use and occupy it and if to either event the damage, in the opinion of the Lessor, to be given in the Lessee within thirty (30) days of the happening of such damage or destruction, cannot be repaired with reasonable diligence within one hundred and twenty (120) days from the date the Lessor has given its opinion, then the Lessor may within five (5) days next succeeding the giving of the Lessor’s opinion as aforesaid terminate this Lease by giving to the other Lessee in writing of such termination, in which event this Lease and the term hereby demised shall cease and be at an end as to the date of such destruction or damages until the rent and all other payments for which the Lessee is liable under the terms of this lease shall be apportioned and paid I full to the date of such destruction or damage; in the event that the Lessor does not so terminate this Lease, then the Lessor shall repair the said building with all reasonable speed and the rent hereby reserved shall abate from the date or the happening or the damage until the damage shall be made good to the extent of enabling the Lessee to occupy the Demised Premises;


14

 

    (b)        if the damage be such that the building of which the Demised Premises forms part is wholly unfit for occupancy, or it is impossible or unsafe to use or occupy it, but if in either event the damage, in the opinion of the Lessor, to be given to the Lessee within thirty (30) days from the happening of such damage, can be repaired with reasonable diligence within one hundred and twenty (120) days from the date the Lessor has given its opinion, then the rent hereby reserved shall abate from the date of the happening of such damage until the damage shall be made good to the extent of enabling the Lessee to occupy the Demised Premises and the Lessor shall repair the damage with all reasonable speed; and,

    (c)        if in the opinion of the Lessor the damage can be made good as aforesaid within one hundred and twenty (120) days from the date the Lessor has given its opinion, and the damage is such that the Demised Premises is capable of being partially used for the purposes for which it is hereby demised, then until such damage has been repaired the rent shall abate in the proportion that the part of the said Demised Premises which is rendered unfit for occupancy bears to the whole of the said Demised Premises and the Lessor shall repair the damage with all reasonable speed.

Loss or Damage

12.        The Lessor, its contractors, agents and employees shall not be liable for any death, injury, or damage to property, consequential damages, economic loss or any claim or demand whatsoever suffered by the Lessee, its employees, agents, licensees, or invitees occurring in or abut the Demised Premises or the Lands and building whether or not such loss or damage resulted form the deliberate act, omission or negligence of the Lessor, its contractor, agents or employees or other persons for whom it may be responsible. All property of the lessee or others within the Demised Premises shall be at risk of the lessee only and the Lessor shall have no obligation with respect to security or protection of any such property. The Lessee will indemnify the Lessor and save it harmless from any and all losses or claims, actions, demands, liabilities and expenses (including legal fees between a solicitor and its own client in connection with loss of life, personal injury and/or damage to the property arising out of any occurrence in or about the Demised Premises or the Lands and Buildings occasioned or caused wholly or in part by any act or omission of the Lessee or its invitees.

Right to Remedy Default

13.        IN THE EVENT that the Lessee shall make default in the payment of any sum required to be paid by it or shall make default in the performance of any covenant or the doing of anything required to be performed or done by it hereunder, then the Lessor shall have the right to pay any such sum so in default or to perform or do any such thing and such sums so paid or the casts for performing or doing such things, and in every such case, shall be deemed to be additional rent payable under the provisions of this Lease and the Lessor shall be entitled to charge all such sums or monies to the Lessee plus 15% for administration and the Lessee shall pay them forthwith on demand; and the Lessor, in addition to any other rights, shall have the same remedies and may take the same steps for the recovery of all such sums or monies as it might have and take for the recovery of rent in arrears under the terms of this Lease. All arrears of rent and monies payable as rent or additional rent under the terms of this Lease which may be in arrears shall bear interest at the rate of twenty-four percent (24%) per annum from the time such arrears become due until paid to the Lessor. As security for the payment for rent and additional rent, the Lessee hereby grants the Lessor a security interest over its business undertaking, inventory and receivables and the Lessor shall have all the rights of a secured party under the Personal Property Security Act. The Lessee consents to the registration of a Financing Statement under the said Act.


15

 

Notice of Sale

14.        THE LESSOR shall have the right at any time during the term hereby demised to place upon the Demised Premises a notice of reasonable dimensions and reasonably placed so as not to interfere with the business, stating the Demises Premises are for sale, and at any time during the last six (6) months of the term that the Demised Premises are to let, and the Lessee shall not remove such notice, or permit the same to be removed.

Improvement to Become Part of the Premises

15.        ANY BUILDING, erection or improvement placed or erected in or upon the Demised Premises, or upon the lands which the Demised Premises are situate, apart from the Lessee’s trade fixtures, shall become a part thereof and shall not be removed, and shall, to the extent that the same are utilized by the lessee, be subject to all of the provisions of this Lease. No building, erection or improvement shall be erected in or upon or adjacent to the Demised Premises, or upon the lands upon which the Demised Premises are situate, without the prior written consent of the Lessor.

Further Assurances to Mortgagee

16.        THE LESSEE covenants that it will, if and whenever reasonably required by the Lessor at the Lessee’s expense, consent to and become a party to any reasonable instrument relating to this Lease including the delivery or statement as to the status of the Lease, which may be required by or on behalf of any mortgagee or insurer or other person, firm or corporation which may have or acquires an interest in the Demised Premises and in addition the Lessee shall execute such documents which may be necessary to cause this Lease to be subordinated to any incidental mortgage or charge against the land and building of which the Demised Premises form part.

Signs

17.        THE LESSEE shall not erect or install any exterior signs or interior window or door signs or advertising media or door lettering or placards without the previous written consent of the Lessor. Provided the Lessee shall be required to install lettering or a size, colour, style and material, approved by the Lessor, on the standard sign panel, if any, installed by the Lessor. Such signage shall be affixed by the Lessor’s sign contractor, at the Lessee’s expense. The Lessee shall not use any advertising media that the Lessor shall deem objectionable to it or other lessees such as loud speakers, phonographs, broadcasts or telecasts in a manner to be heard or seen outside the Demised Premises. The Lessee shall not install any exterior lighting or plumbing fixtures, shades, awnings, exterior decorations or painting on buildings or any fences, aerial or make any change to the building front or rear without the previous written consent of the Lessor. The Lessee shall indemnify and save harmless the Lessor from all claims, demands, loss or damage to any person or property arising out of or in any way caused by the erection, maintenance or removal of any such sign, mast, aerial or their installations. The Lessee shall have the right, subject to the Lessor’s standard sign policy, to install an identification sign at the front and/or rear of the Unit.


16

 

The Lessor shall have the right to install a roadside directory containing the names of each of the Lessees in the development and he Lessee’s company name and municipal address on the main entrance screen of the Demised Premises and the lessee covenants to pay to the Lessor upon receipt of a statement setting forth in reasonable detail the cost of such sign or signs, including installation thereof, the amount requested.

Rules and Regulations

18.        (a)        THE LESSEE acknowledges and agrees that the Lessor shall have the right to promulgate reasonable rules and regulations copies of which shall be delivered to the Lessee to regulate the use of the common outside areas and facilities about the building of which the Demised Premises form part, provided that such restrictions shall not hinder the use of the Demised Premises by the Lessee. The Lessee agrees that for the benefit and welfare of lessees occupying other units in the building and using the said common outside areas and facilities, such reasonable rules and regulations shall form part of this Lease and shall be binding upon the Lessee, provided that nothing herein contained shall require or be deemed to require the Lessor to promulgate any such rules or regulations or to regulate in any manner whatsoever the use of the common outside areas and utilities.

Use of Common Areas and Facilities

    (b)        THE LESSEE, its employees, invitees and customers and persons connected with the Lessee (subject and except as in the Lease provided), as appurtenant to the Demised Premises during the term of this lease and any renewal thereof shall have the right in common with others entitled thereto from time to time to use the driveways, walkways, lawns, if any, ramps and other common outside areas and facilities in and about the Development hereof except parking areas as may from time to time be designated by the Lessor for the use of, or benefit of, such person or others or areas designated for the purpose of ingress to and egress from the Demises Premises or other premises within the Development. The Lessee shall not unreasonably block or in any manner hinder the Lessor, or other lessees or person claiming through or under them or any of them who may be authorized by the Lessor to utilize the common outside areas and facilities from so doing. The Lessor may in its discretion from time to time permit other lessees to have the exclusive use of portions thereof.

    (c)        Subject as herein provided, the Lessor shall have the right to make such changes and improvements or authorizations as the Lessor may from time to time in its discretion determine in respect of the common outside ways, areas and facilities, or any part thereof.

Maintenance of Common Areas

19.        THE LESSOR and any persons authorized by the Lessor shall have the right to install, maintain and/or repair pipes, wires, ducts or other installations in, under or through the Demised Premises, or in, under or through the common outside areas and facilities about the Demised Premises, for or in connection with the supply of any services in the Demised Premises or other premises in the building of which the Demised Premises form part, but nothing herein contained shall oblige the Lessor to make such installation or do such maintenance or effect such repairs. The Lessor shall make all such repairs as quickly as possible and in such manner as to inconvenience the Lessee to the least possible extent, but the Lessor shall not be liable for any losses or damages which may be incurred by the lessee as result thereof.


17

 

Waiver Not Cumulative

20.        THE FAILURE of the Lessor to insist upon a strict performance of any of the agreements, terms, covenants and conditions hereof shall not be deemed to be a wavier of any rights or remedies that the Lessor may have and shall not be deemed to be a wavier of any subsequent breach or default in any of such agreements, terms, covenants and conditions. All rights and powers reserved to the Lessor hereunder may be exercised either by the Lessor or its agents or representatives from time to time and all such rights and powers shall be cumulative and not alternative.

Notices

21.        ANY NOTICE, request, or demand herein provided or permitted to be given by the Lessee to the Lessor shall be sufficiently given if mailed postage prepaid, registered, or delivered to the Lessor addressed to it at its office and signed for by the Lessor’s representative, and any notice herein provided or permitted to be given by the Lessor to the Lessee shall be sufficiently given if mailed in the City of Vaughan, Ontario postage prepaid, registered or delivered to the Lessee addressed to it at the Demised Premises and signed for by the Lessee’s representative. Any such notice given us aforesaid shall be conclusively deemed to have been given on the day on which such notice is delivered, or on the third business day following the day upon which such notice is mailed, as the case may be. Either party may at any time give notice in writing to the other of any change of address of the party giving such notice, and from and after the giving of such notice, the address therein specified shall be deemed to the address of such party for the giving of notices hereunder. The word “notice” in this paragraph shall be deemed to include any request, statement or other writing in this Lease provided or permitted to be given by the Lessor to the Lessee or by the Lessee to the Lessor.

Binding On Heirs, etc.

22.        THIS INDENTURE and everything herein contained shall enure to the benefit of and be binding upon the parties hereto and their respective successors and assigns subject to the consent of the Lessor being obtained as hereinbefore provided to any assignment, sublease or parting with possession of the Demises Premises by the Lessee.

Marginal Notes

23.        The marginal notes contained in this Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease not in any way affect this Lease.

Underestimates

24.        The Lessee agrees that if the Lessor is required to apportion the cost of utilities, taxes or insurance between all or certain of the lessees occupying the premises and, in his opinion, acting reasonably, the Lessee is responsible for an amount greater than his proportionate share as hereinbefore defined, the Lessee agrees to pay such amount in the same manner as additional rent hereunder.

Change in Definitions

25.        The Lessee agrees that if the Lessor shall elect to sell one (1) or more of the buildings now or hereafter located on the lands described as the Development hereto, reference to the lands described in the Development shall be adjusted accordingly, provided the Lessee shall have reasonable ingress and egress and loading facilities for the purpose of carrying on the use hereinbefore stated.


18

 

Liens

26.        If any mechanics or liens or order for the payment of money shall be filed against the Demised Premises by reason or arising out of any labour or material furnished to the Lessee or to anyone claiming through the Lessee, the Lessee shall, within fifteen (15) days after notice to the Lessee of the filing thereof, cause the same to be discharged by bonding, deposit, payment, court order or otherwise. The Lessee shall defend all suits to enforce such lien, or orders, whether against the Lessee or the Lessor, at the Lessee’s sole expense. The Lessee hereby indemnifies the Lessor against an expense or damage as a result of such liens or orders.

No Registration

27.        The Lessee shall not register this Lease in this form in the appropriate Land Registry Office but should the Lessee or the Lessor request same then the parties hereto shall contemporaneously with the execution of this Lease execute a notice thereof solely for the purpose of supporting an application for registration of notice thereof, and such short form shall be in a form approved by the Lessor. The cost of reparation and registering such notice, if requested by the Lessee, shall be borne by the Lessee.

Re-Zoning, etc.

28.        The Lessee covenants that it will not oppose or cause to be opposed any application for additions to the buildings within the Development, changes of use permitted by all or any part of the buildings within the Development or changes of zoning concerning the lands on which the Development is situate, or any lands of the Lessor within a radius of one (1) mile of the building, which are instituted by the Lessor, provided the ability of the Lessee to use the Demised Premises for the purpose herein provided is not adversely affected thereby. Upon the request of the Lessor, the Lessee shall execute a suitable acknowledgement that it does not oppose any such application.

Currency

29.        Any payment required to be made by any provision of this Lease shall be made in lawful money of Canada.

Ontario law

30.        This Lease shall be deemed to have been made in and shall be construed in accordance with the laws of the Province of Ontario.

Joint and Several

31.        If two or more individuals, corporations, partnerships, or other business associations (or any combination of two more thereof) sign this Lease as the Lessee, the liability of each such individual, corporation, partnership or other business association to pay rent and perform all other obligations hereunder shall be deemed to be joint and several. In like manner, if the Lessee is a partnership or other business association, the members of which are, by virtue of statue or general law, subject to personal liability, the liability or each such member shall be joint and several.


19

 

Planning Act

32.        This Lease is entered into subject to the express condition that it is to be effective to create any interest in land, only if the provisions of Section 50 of the Planning Act (as it may from time to time be amended) are complied with. The Lessor and Lessee agree, as a separate and distinct agreement, that if the consent of the appropriate Committee of Adjustment or Land Adjustment Committee (or other body having jurisdiction) is requisite to the validity of this lease, either, either party may apply for such consent, and if such consent has not been obtained prior to the commencement of the term, the Lessor may give notice that if such consent has not been obtained and the demise hereunder thereby made effective within thirty (30) days from the giving of such notice all rights and obligations for the parties hereunder shall terminate at the expiration of the said period of thirty (30) days, and if such consent has not been so obtained such rights and obligations shall terminate accordingly. Notwithstanding the foregoing, the Lessor may at its option upon notice in writing to the Lessee deem the term of the Lease including any rights of renewal to be for a period of twenty-one (21) years less a day.

Parking

33.        The Lessee shall have the right to park or permit to be parked motor vehicles in such portions of the parking areas adjacent to the Demised Premise as the Lessor may designate or allocate to it, in the Lessor’s sole discretion; provided the Lessee covenants that it will not use or permit to be used the said portion of the parking area in such a manner as to restrict the flow of traffic across the parking area and that it will not erect or permit to be erected any barrier across or adjacent to any part of such potion of the parking area. Provided further that the Lessee, its servants, agents, and employees will not use or cause to be used by it or on its account any part of the said parking area other than those so designated or allocated to it, nor will it interfere in any way whatsoever with the use of the parking areas by the Lessor’s other lessees. Unless otherwise specifically provided herein, the Lessor does not guarantee to the Lessee the use of any specific number of parking spaces in the said parking areas. Provided, however, the Lessor shall have the right to re-designate the parking spot or spots which have been given to the Lessee. The Lessee may not park vehicles under repair in parking areas.

Calculations of Area

34.        (a)       The rentable area of the Demised Premises, shall be the sum of the following two amounts:

    (i)        The area of the unit as calculated measuring from the exterior surfaces of the exterior walls and of all walls adjoining common areas, and from the centre line of a party or demising wall separating two (2) or more rentable areas, all without deduction or exclusion for any space occupied or used for columns, suits, or other interior construction or equipment or for nay doorway areas or shipping areas, recessed from the lease line; and,

    (ii)        The area calculated to be the product of the area as determined in accordance with subsection (a) of this paragraph, multiplied by the fraction, the numerator of which is the area of all utility rooms and garbage rooms located in the Development and the denominator which is the leasable are as set out in subparagraph (a) above, of all the units in the Development.

    (b)        The rentable area shall be adjusted in accordance with the subsection and the rental as set out in paragraph 3 of this Lease shall be re-calculated by multiplying the monthly and yearly rental by a fraction, the numerator of which is the rentable area and the denominator of which is the rentable area specified in paragraph 1 of this lease.


20

 

Refuse Collection

35.        The Lessor at its option may require the Lessee to either:

    (i)        Store all refuse within the Demised Premises; or

    (ii)        Use a common refuse room to be serviced by a disposal contractor, in which event, the Lessee shall pay as an additional rental each month, its proportionate estimated share of the cost of such private refuse pick up. In the event the Lessor acting reasonably determines that the amount of garbage being generated by the Lessee is greater than its proportionate share, the Lessor shall have the right to estimate and charge to the Lessee such larger cost as it reasonably attributes to the Lessee.

Process Standards and Regulations

36.        The Lessee covenants and agrees that no noise, vibration, odours, water or fumes will emanate from the Demised Premises and disturb lessees of neighbouring premises. The Lessor shall be the sole arbiter and the determination of the Lessor shall be final as to whether any noise vibration, odours, water or funds are emitting from the premises and disturbing neighbouring lessees. Moreover, in the event any such disturbance is caused by the Lessee and is not remedied within seven (7) days of written notice by the Lessor, in addition to all of the other remedies set forth herein, the Lessor shall have the right to terminate the Lease without further notice and without further warning to the Lessee.

37.         Noise and Odour

    The Lessee covenants and agrees that no noise, vibration, odours, water or fumes will emanate from the demised premises and disturb lessees of neighbouring premises. The Lessor shall be the sole arbiter and the determination of the Lessor shall be final as to whether any noise vibration, odours, water or fumes are emitting from the premises and disturbing neighbouring Lessees. Moreover, in the event any such disturbance is caused by the Lessee and is not remedied within seven (7) days of written notice by the Lessor, in addition to all of the other remedies set forth herein, the Lessor shall have the right to terminate the Lease without further notice and without further warning to the Lessee.

Chemicals and Foreign Substances

38.        The Lessee covenants and agrees not to allow any chemicals of foreign substances to flow into the sanitary or storm sewer drains. The Lessee shall indemnify the Lessor from any costs involved in compliance with any statue, by-law, regulation, order or assessment, including legal and consultant’s fees and including the payment of any fines, penalties or other costs resulting from any pollutant or contaminant or environmental damage for which the Lessee is responsible in which the Lessee is responsible in whole or in part and this indemnity shall survive the termination of this Lease.


21

 

Environmental and Pollution

39.        For the purpose hereof:

Environmental Laws ” shall mean any laws, by0laws, regulations, ordinances or statues of any governmental authority having jurisdiction over the Demised Premises relating to protection of the environmental or health and safety.

Noxious Substance ” shall mean any substance defined as a contaminant pursuant to Environmental laws.

    The Lessee shall at all times comply with all Environmental laws and not permit the release of any Noxious Substance and shall indemnify and save the Lessor harmless from any breach thereof. In the event that as a result of an act or omission of the Lessee, its employees, agents, contractors, invitees or other person for whom the lessee is at law responsible, there is a breach of any Environmental Law of the release of any Noxious Substance, the Lessor shall have the right to enter upon the Demised Premises and rectify such situation and the Lessee shall forthwith upon demand pay the cost of such rectification plus 15% for the Lessor’s administration fee in addition to any other remedy of the Lessor. This provision shall survive the termination of this Lease. In the event that the said breach adversely effects the use of other premises within the Building or is of a continuing nature, the Lessor shall in addition to any other rights it may have, have the right to terminate this Lease.

Interpretation

40.        Unless the context otherwise requires, the word “Lessor” whenever it is used herein shall be construed to include the Lessor and its successors and/or assigns, and the word “Lessee” shall be construed to include and shall mean the Lessee and its successors and/or assigns. The word “Lessee” “Lessor” and the personal pronoun “it” relating thereto and used therewith shall read and be construed as the Lessor, the Lessee, and “his”, “her”, “its” or “their” respectively, as the number and gender of the party or parties referred to each require and the number of the verb agreeing therewith, shall be construed and agreed with the said word or pronoun substituted.

Option to Renew

41.        Provided when not in default hereunder and having consistently performed its obligations pursuant to the Lease throughout the term of the Lease, the Lessee shall have the right to renew this Lease upon written notice to the Lessor, at least six (6) months prior to the expiration of the within Lease, for a further term of five (5) years , upon the same terms and conditions, save and except for rent, to be mutually agreed upon. In the event the parties fail to agree on the renewal rent, within sixty (60) days prior to the expiration of term herein, then same shall be submitted to arbitration, pursuant to the Arbitrations Act of Ontario. Each party to pay its own cost for said Arbitration.

42.        Included in the rental agreement are the cranes and locations of same, indicated by the ‘XXXXX’ marks on Schedule “A” hereto.

    All overhead cranes must be maintained and serviced by the Lessee at the end of the lease herein. Said cranes must be returned in operating condition and safe working order.


22

 

43.        It is understood that this Lease includes a Shot Blaster. The maintenance of said Shot Blaster by the Lessee must be performed regularly and the repairs, when needed and all installation must be returned in working condition.

44.        This Lease shall terminate upon the occurrence of an Event of Default as such term is defined in the Asset Purchase Agreement dated as of October 19, 2006 among Veri-tek International Corp., Liftking Industries, Inc., Liftking Corporation, Louis Aldrovandi and Mark Aldrovandi.

IN WITNESS WHEREOF the parties hereto have caused their corporate seals to be affixed over the hands of their duly authorized signing officers in that behalf on the date first written above.

 

ALDROVANDI EQUIPMENT LIMITED

(Lessor)

 

Name:

 

 Louis Aldrovandi

Title:

 

 President

Date:

 

 June 8, 2010

I have authority to bind the Corporation

 

MANITEX LIFTKING, ULC

(Lessee)

 

Name:

 

 Bill Mavin

Title:

 

 President

Date:

 

 June 8, 2010

I have authority to bind the Corporation


23

 

RULES AND REGULATIONS

1.         The Lessee shall not perform any acts or carry on any practice which may inure the common outside areas and facilities or be a nuisance to any other lessee of the premise situated in the Development.

2.         The Lessee shall not burn any trash or garbage in or about the demised premises or anywhere within the confines of the Development.

3.         The Lessee shall not keep or display any merchandise on or otherwise obstruct the sidewalks, malls, driveways or other common areas adjacent to the Demised Premises nor block he aisles in the parking and shipping areas.

4.         The Lessee shall not overload any floor of the Demised Premises.

5.         The Lessee shall at all times keep the demised premises in a clean and sanitary condition in accordance with the laws and direction, ruses and regulations of any governmental or municipal agency having jurisdiction.

6.         At the commencement and through the term of this Lease, the Lessee shall at the expense of the Lessee, supply and install all light bulbs and tubes and maintain all necessary lighting fixtures.

7.         the Lessee shall not grant any concessions, licenses or permission to any third (3rd) parties to sell or take orders for merchandise or services in the Demised Premises without the prior written approval of the Lessor.

8.         The Lessee shall, upon written notice from the Lessor within five (5) days furnish the Lessor with the current Provincial License Number of any vehicles owned or used by the employees or the Lessee. The Lessor may from time o time designate an employee area that may be used by all Lessees and their employees and agents.

9.         For the benefit and welfare of the Lessor, the Lessor shall have the right to issue further Rules and Regulations and such further Rules and Regulations shall thereupon be binding upon the Lessee. Provided, that any such Rule or Regulation is not detrimental to the Lessee.

Exhibit 31.1

CERTIFICATIONS

I, David J. Langevin, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Manitex International, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: August 13, 2010   By:  

/s/ David J. Langevin

  Name:   David J. Langevin
  Title:   Chairman and Chief Executive Officer
   

(Principal Executive Officer of Manitex

International, Inc.)

 

43

Exhibit 31.2

CERTIFICATIONS

I, David H. Gransee, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Manitex International, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: August 13, 2010   By:  

/s/ David H. Gransee

  Name:   David H. Gransee
  Title:   Vice President and Chief Financial Officer
   

(Principal Financial and Accounting Officer of Manitex

International, Inc.)

 

44

Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE

SARBANES-OXLEY ACT OF 2002

Solely for the purpose of complying with 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, we, the undersigned Chief Executive Officer and Chief Financial Officer of Manitex International, Inc. (the “Company”), hereby certify that, to the best of our knowledge, the Quarterly Report of the Company on Form 10-Q for the quarter ended June 30, 2010 (the “Report”) fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

By:  

/s/ David J. Langevin

Name:   David J. Langevin
Title:   Chairman and Chief Executive Officer
 

(Principal Executive Officer of Manitex

International, Inc.)

Dated: August 13, 2010

 

By:  

/s/ David H. Gransee

Name:   David H. Gransee
Title:   Vice President and Chief Financial Officer
 

(Principal Financial and Accounting

Officer of Manitex International, Inc.)

Dated: August 13, 2010

 

45