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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE LINCOLN ELECTRIC COMPANY
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(Exact name of registrant as specified in its charter)
Ohio 34-0359955
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(State of Incorporation or Organization) IRS employer
identification no.)
22801 St. Clair Avenue, Cleveland, OH 44117
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(Address of principal executive offices) (zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
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Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Shares, without par value
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(Title of class)
The Exhibit Index is located on page 5.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the Registrant's Class A Common
Shares, without par value, which the Registrant will
distribute as a dividend to shareholders of the Registrant on
June 12, 1995, set forth under the caption "Description of
Capital Stock" in the Registrant's Registration Statement on
Form S-3, filed with the Securities and Exchange Commission
("the Commission") on April 27, 1995, Registration No.
33-58881, including exhibits and as may be further amended
from time to time, is hereby incorporated by reference.
ITEM 2. EXHIBITS.
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Number Description
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1. Restated Articles of Incorporation of the Registrant.
2. Restated Code of Regulations of the Registrant.
3. Note Agreement dated November 20, 1991 between The Prudential
Insurance Company of America and the Company (filed as Exhibit
4 to Form 10-K of The Lincoln Electric Company for the year
ended December 31, 1991, SEC File No. 0-1402 and incorporated
by reference and made a part hereof), as amended by letter
dated March 18, 1993; 8.98% Senior Note Due November 26, 2003
(filed as Exhibit 4(a) to Form 10-K of The Lincoln Electric
Company for the year ended December 31, 1992, SEC File
No. 0-1402 and incorporated herein by reference and made a
part hereof); as further amended by letter dated as of November
19, 1993; 8.98% Senior Note Due November 26, 2003 (filed as
Exhibit 4(a) to Form 10-K of The Lincoln Electric Company for
the year ended December 31, 1993, SEC File No. 0-1402 and
incorporated herein by reference and made a part hereof), and as
further amended by letter dated October 31, 1994 (filed as
Exhibit 4(a) to Form 10-Q of The Lincoln Electric Company for
the period ended September 30, 1994, SEC File No. 0- 1402 and
incorporated herein by reference and made a part hereof).
4. Credit Agreement dated March 18, 1993 among the Company, the
Banks listed on the signature page thereof, and Society
National Bank, as Agent (filed as Exhibit 4(b) to Form 10-K of
The Lincoln Electric Company for the year ended December 31,
1992, SEC File No. 0-1402 and incorporated herein by reference
and made a part hereof), as amended by Amendment No. 1 to
Credit Agreement dated November 19, 1993; 8.98% Senior Note
Due November 26, 2003 (filed as Exhibit 4(b) to
</TABLE>
Page 2 of 6 Pages
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<TABLE>
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Form 10-K of The Lincoln Electric Company for the year ended
December 31, 1993, SEC File No. 0-1402 and incorporated herein
by reference and made a part hereof), and as further amended by
Amendment No. 2 to Credit Agreement dated October 31, 1994
(filed as Exhibit 4(b) to Form 10-Q of The Lincoln Electric
Company for the period ended September 30, 1994, SEC File No.
0-1402 and incorporated herein by reference and made a part
hereof).
5. Specimen certificate for the Class A Common Shares, without
par value, of the Registrant.
</TABLE>
Page 3 of 6 Pages
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
THE LINCOLN ELECTRIC COMPANY
By: /s/ H. Jay Elliott
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H. Jay Elliott
Vice President, Chief
Financial Officer and
Treasurer
June 5, 1995
Page 4 of 6 Pages
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EXHIBIT INDEX
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Exhibit
Number Description
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1. Restated Articles of Incorporation of the Registrant.
2. Restated Code of Regulations of the Registrant.
3.
Note Agreement dated November 20, 1991 between The Prudential
Insurance Company of America and the Company (filed as
Exhibit 4 to Form 10-K of The Lincoln Electric Company for
the year ended December 31, 1991, SEC File No. 0-1402 and
incorporated by reference and made a part hereof), as amended
by letter dated March 18, 1993; 8.98% Senior Note Due
November 26, 2003 (filed as Exhibit 4(a) to Form 10-K of The
Lincoln Electric Company for the year ended December 31,
1992, SEC File No. 0-1402 and incorporated herein by
reference and made a part hereof); as further amended by
letter dated as of November 19, 1993; 8.98% Senior Note Due
November 26, 2003 (filed as Exhibit 4(a) to Form 10-K of The
Lincoln Electric Company for the year ended December 31,
1993, SEC File No. 0-1402 and incorporated herein by
reference and made a part hereof), and as further amended by
letter dated October 31, 1994 (filed as Exhibit 4(a) to Form
10-Q of The Lincoln Electric Company for the period ended
September 30, 1994, SEC File No. 0-1402 and incorporated
herein by reference and made a part hereof).
4. Credit Agreement dated March 18, 1993 among the Company,
the Banks listed on the signature page thereof, and Society
National Bank, as Agent (filed as Exhibit 4(b) to Form 10-K
of The Lincoln Electric Company for the year ended December
31, 1992, SEC File No. 0-1402 and incorporated herein by
reference and made a part hereof), as amended by Amendment
No. 1 to Credit Agreement dated November 19, 1993; 8.98%
Senior Note Due November 26, 2003 (filed as Exhibit 4(b) to
Form 10-K of The Lincoln Electric Company for the year ended
December 31,
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Page 5 of 6 Pages
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<TABLE>
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1993, SEC File No. 0-1402 and incorporated herein by
reference and made a part hereof), and as further amended by
Amendment No. 2 to Credit Agreement dated October 31, 1994
(filed as Exhibit 4(b) to Form 10-Q of The Lincoln Electric
Company for the period ended September 30, 1994, SEC File
No. 0-1402 and incorporated herein by reference and made a
part hereof).
5. Specimen certificate for the Class A Common Shares,
without par value, of the Registrant.
</TABLE>
Page 6 of 6 Pages
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EXHIBIT 1
THE LINCOLN ELECTRIC COMPANY
RESTATED ARTICLES OF INCORPORATION
ARTICLE FIRST: The name of the Corporation shall be THE
LINCOLN ELECTRIC COMPANY.
ARTICLE SECOND: The place in the State of Ohio where its
principal office is located is the City of Cleveland, Cuyahoga County.
ARTICLE THIRD: The Corporation is formed for the purpose of
manufacturing, repairing, buying, selling and dealing in all varieties and
kinds of electrical machinery, tools and appliances, and doing all things
necessary and incident thereto.
ARTICLE FOURTH: Section 1. The maximum number of shares
which the Corporation is authorized to have outstanding is sixty-two million
(62,000,000), consisting of thirty million (30,000,000) Common Shares, without
par value ("Common Shares"), thirty million (30,000,000) Class A Common Shares,
without par value ("Class A Common Shares") and two million (2,000,000) Class B
Common Shares, without par value ("Class B Common Shares"). The shares of each
class shall have the express terms set forth in this Article Fourth.
Upon the Certificate of Restated Articles of Incorporation
setting forth these amendments becoming effective pursuant to the Ohio General
Corporation Law (the "Effective Time"), and without any further action on the
part of the Corporation or its shareholders, (i) each whole share of Common
Stock, without par value ("Old Common Stock") then issued shall automatically
be changed and converted into one fully paid and nonassessable Common Share,
(ii) each whole share of Class A Common Stock, without par value ("Old Class A
Common Stock") then issued shall automatically be changed and converted into
one fully paid and nonassessable Class B Common Share, (iii) certificates
representing Old Common Stock outstanding prior to the Effective Time shall be
deemed to represent the same number of Common Shares, and (iv) certificates
representing Old Class A Common Stock outstanding prior to the Effective Time
shall be deemed to represent the same number of Class B Common Shares.
The powers, preferences and rights of the Common Shares, Class A
Common Shares and Class B Common Shares (collectively, from and after the
Effective Time, the "Common Equity") and the qualifications, limitations and
restrictions thereof, shall in all respects be identical, except as otherwise
required by law or as expressly provided in these Restated Articles
of Incorporation.
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Section 2. Voting.
Section 2.1. Each shareholder of the Corporation shall be
entitled to one vote for each Common Share and each Class B Common Share
standing in such shareholder's name on the books of the Corporation. Except as
otherwise required by statute, the holders of Common Shares and Class B Common
Shares shall vote together as one class on all matters.
Section 2.2. The holders of Class A Common Shares shall not
be entitled to vote on any matter submitted to shareholders for their vote,
consent, waiver, release or other action except as required by statute.
Section 3. Dividends. Dividends may be declared and paid to
the holders of Common Shares, Class A Common Shares and Class B Common Shares
in cash, property, or other securities of the Corporation (including shares of
any class whether or not shares of such class are already outstanding) out of
funds legally available therefor. No dividend shall be paid on the outstanding
Common Shares, Class A Common Shares or Class B Common Shares unless an equal
dividend per share is paid on each of the outstanding Common Shares, Class A
Common Shares and Class B Common Shares subject to the following:
(a) no cash dividend shall be declared or paid on
one class of Common Equity unless a cash
dividend of the same amount per share is
simultaneously declared and paid on the other
classes of Common Equity;
(b) dividends payable on the Common Equity in
capital stock shall be made to all holders of
Common Equity provided that: (i) such a
dividend on Class A Common Shares shall be
paid or made only in Class A Common Shares;
(ii) such a dividend on Class B Common Shares
shall be paid or made only in the same class
of Common Equity as paid on the Common
Shares; and (iii) a dividend on Class A
Common Shares paid or made in Class A Common
Shares and a dividend on Common Shares and
Class B Common Shares paid or made in either
Common Shares, Class A Common Shares or Class
B Common Shares (consistent with (ii) above)
shall be deemed an equal dividend per share
within the meaning of this Section 3 if paid
in the same proportion regardless of the fair
market value of such shares received in
payment of such dividend.
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Section 4. Merger, Consolidation, Combination or Dissolution
of the Corporation. In the event of merger, consolidation or combination of
the Corporation with another entity (whether or not the Corporation is the
surviving entity) or in the event of dissolution of the Corporation, holders of
Class A Common Shares shall be entitled to receive in respect of each Class A
Common Share the same indebtedness, other securities, cash, rights, or any
other property, or any combination of shares, evidences of indebtedness,
securities, cash, rights or any other property, as holders of Common Shares and
Class B Common Shares shall be entitled to receive in respect to each share.
Section 5. Splits or Combinations of Shares. If the
Corporation shall in any manner split, subdivide or combine the outstanding
Common Shares, Class A Common Shares or Class B Common Shares, the outstanding
shares of the other such classes shall be proportionately split, subdivided or
combined in the same manner and on the same basis as the outstanding shares of
the other classes that have been split, subdivided or combined.
Section 6. Change in Number of Authorized Class A Common
Shares. The number of authorized Class A Common Shares may be increased or
decreased (but not below the number then outstanding) by the affirmative vote
of the holders of a majority of the aggregate number of outstanding Common
Shares and Class B Common Shares entitled to vote in the election of directors
voting as a single class.
Section 7. No Preemptive Rights. No shareholder of the
Corporation shall have any preemptive right as such shareholder to subscribe
for or purchase shares of the Corporation.
Section 8. Restrictions on Transfer of Class B Common Shares.
Section 8.1. No sale, assignment, transfer, pledge,
encumbrance or any other disposition of any Class B Common Shares may be made,
except upon compliance with the provisions of Sections 8.1 through 8.4 of this
Article Fourth (or the exception set forth in Section 8.2(b) below). Any
purported or attempted disposition of the Class B Common Shares other than as
permitted by this Article Fourth shall be void, and the last shareholder of
record who acquired such shares in a manner not contrary to this Article Fourth
shall be recognized as the holder of such shares for all purposes.
Section 8.2. The Corporation shall have the sole, exclusive
and unrestricted right, option and privilege to purchase, upon the occurrence
of any of the events set forth below, any or all of the Class B Common Shares
in a manner and at
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a price per share current at the time of the purchase of said shares as
determined pursuant to the terms and provisions of Section 8.3 and 8.4 of this
Article Fourth. The events are:
(a) the death of a holder of Class B Common Shares; and
(b) the determination of a holder of Class B Common
Shares to sell, assign, transfer, pledge, give,
encumber or in any other way dispose of all or any of
said shares, except for any such disposition in the
form of a distribution from The Lincoln Electric
Company Employee Stock Ownership Plan ("Plan")
pursuant to the terms and conditions of the Plan.
Section 8.3. Upon the occurrence of either of the events
specified in Section 8.2 above, the holder of Class B Common Shares, or the
personal representative of said holder's estate, as the case may be, shall
notify the Corporation in writing of the occurrence of any such event. If the
Corporation shall elect to exercise any such right, option or privilege, it
shall, not later than ninety (90) days after it shall have received written
notice from the holder of Class B Common Shares or the personal representative
of said holder's estate, as the case may be, of the occurrence of any such
event, send written notice thereof to said holder or the personal
representative of said holder's estate, as the case may be, of such shares at
his or her last address as shown on the stock transfer records of the
Corporation, or, in the event of the death of said holder, to such other
address as may be so specified in the notice. The Corporation shall pay the
purchase price (as determined pursuant to the terms and provisions of Section
8.4 of this Article Fourth) to the holder of such shares, or in the event of
the death of said holder, to the personal representative of said holder's
estate, immediately upon the delivery to the Corporation of the certificate or
certificates representing the Class B Common Shares, duly endorsed for transfer
and delivery to the Corporation, its successors, assigns or nominees. Upon
delivery of the Corporation's written notice, all rights in and to the Class B
Common Shares shall be vested solely in the Corporation, its successors,
assigns or nominees. If the Corporation does not exercise its right to
purchase any or all of the Class B Common Shares pursuant to the terms and
provisions of this Article Fourth, such shares may be freely disposed of by the
holder thereof or the personal representative of said holder's estate, as the
case may be, not more than ninety (90) days after the expiration of the
Corporation's repurchase period; provided, however, that any such Class B
Common Shares so disposed of shall continue to be subject to the terms and
provisions of this Article Fourth. Any Class B Common Shares not so disposed
of
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shall continue to be subject in all respects to the restrictions and provisions
contained in this Article Fourth.
Section 8.4. The price, rounded to the nearest dollar, at
which any Class B Common Share shall be bought or sold pursuant to the terms
and provisions of this Article Fourth shall be:
(a) the book value of such share in effect on the date of
receipt by the Corporation of the above-described
written notice, plus
(b) the accrued unpaid dividends with respect to such
share which were considered liabilities in
determining book value.
The book value used for this purpose shall be established each April 30 for the
12-month period, May 1 - April 30, following that date and shall be the book
value as of the immediately preceding December 31 as shown in the Corporation's
Audited Consolidated Financial Statements.
Section 8.5. Any Class B Common Shares purchased by the
Corporation pursuant to this Article Fourth shall be retired and restored to
the status of authorized and unissued shares.
Section 8.6. All share certificates representing Class B
Common Shares shall contain a reference to the restrictions and provisions
contained in this Article Fourth.
Section 9. Class A Common Shares Protection Provisions.
Section 9.1. If, after the Effective Time, a Person or group,
as defined in Section 9.11, acquires beneficial ownership of shares
representing 15% or more of the number of then outstanding Common Shares and
such Person or group (a "Significant Shareholder") does not then beneficially
own an equal or greater percentage of all then outstanding Class A Common
Shares, all of which Class A Common Shares must have been acquired by such
Significant Shareholder after the first issuance by the Corporation of Class A
Common Shares (the "Distribution Date"), such Significant Shareholder must,
within a ninety (90) day period beginning the day after becoming a Significant
Shareholder, make a public cash tender offer in compliance with all applicable
laws and regulations to acquire additional Class A Common Shares as provided in
this Section 9 of Article Fourth (a "Class A Protection Transaction").
Section 9.2. In each Class A Protection Transaction, the
Significant Shareholder must make a public tender offer to acquire that number
of additional Class A Common Shares
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determined by (i) multiplying the percentage of the number of outstanding
Common Shares beneficially owned and acquired after the Effective Time by such
Significant Shareholder by the total number of Class A Common Shares
outstanding on the date such Person or group became a Significant Shareholder,
and (ii) subtracting therefrom the excess (if any) of the number of Class A
Common Shares beneficially owned by such Significant Shareholder on the date
such Person or group became a Significant Shareholder (including shares
acquired at or prior to the time such Person or group became a Significant
Shareholder) over the number of Class A Common Shares beneficially owned on the
Distribution Date (as adjusted for stock splits, stock dividends and similar
recapitalization). The Significant Shareholder must acquire all shares validly
tendered; or if the number of Class A Common Shares tendered to the Significant
Shareholder exceeds the number of shares required to be acquired pursuant to
this Section 9.2, the number of Class A Common Shares acquired from each
tendering holder shall be pro rata based on the percentage that the number of
shares tendered by such shareholder bears to the total number of shares
tendered by all tendering holders.
Section 9.3. The offer price for any Class A Common Shares
required to be purchased by the Significant Shareholder pursuant to this
Section 9 shall be the greatest of (i) the highest price per share paid by the
Significant Shareholder for any Common Shares or Class A Common Shares during
the six-month period ending on the date such Person or group became a
Significant Shareholder, (ii) the highest reported sale price of a Common Share
or Class A Common Share on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") National Market System (or such other
securities exchange or quotation system as is then the principal trading market
for such shares) during the 30 day period preceding such Person or group
becoming a Significant Shareholder, and (iii) the highest reported sale price
of a Common Share or Class A Common Share on the NASDAQ National Market System
(or such other securities exchange or quotation system as is then the principal
trading market for such shares) on the business day preceding the date the
Significant Shareholder makes the tender offer required by this Section 9. For
purposes of Section 9.4, the applicable date for each calculation required by
clauses (i) and (ii) of the preceding sentence shall be the date on which the
Significant Shareholder becomes required to engage in the subsequent Class A
Protection Transaction for which such calculation is required. In the event
that the Significant Shareholder has acquired Common Shares or Class A Common
Shares in the six month period ending on the date such Person or group becomes
a Significant Shareholder for consideration other than cash, the value of such
consideration per Common Share or Class A Common Share shall be as determined
in good faith by the Board of Directors.
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Section 9.4. A Class A Protection Transaction shall also be
required to be effected by any Significant Shareholder each time that the
Significant Shareholder acquires after the Effective Time beneficial ownership
of additional Common Shares equal to or greater than the next higher integral
multiple of 5% in excess of 15% (e.g., 20%, 25%, 30%, etc.) of the number of
outstanding Common Shares if such Significant Shareholder does not then own an
equal or greater percentage of the Class A Common Shares (all of which Class A
Common Shares must have been acquired by such Significant Shareholder after the
Distribution Date). Such Significant Shareholder shall be required to make a
public cash tender offer to acquire that number of Class A Common Shares
prescribed by the formula set forth in Section 9.2, and must acquire all shares
validly tendered or a pro rata portion thereof, as specified in Section 9.2, at
the price determined pursuant to Section 9.3, even if a previous Class A
Protection Transaction resulted in fewer Class A Common Shares being tendered
than required in the previous offer.
Section 9.5. If any Significant Shareholder fails to make an
offer required by this Section 9, or to purchase shares validly tendered and
not withdrawn (after proration, if any), such Significant Shareholder shall not
be entitled to vote any Common Shares beneficially owned by such Significant
Shareholder unless and until such requirements are complied with or unless and
until all Common Shares causing such offer requirement to be effective are no
longer beneficially owned by such Significant Shareholder. The requirement to
engage in a Class A Protection Transaction is satisfied by the making of the
requisite offer and purchasing validly tendered shares pursuant to this Section
9, even if the number of shares tendered is less than the number of shares
included in the required offer.
Section 9.6. The Class A Protection Transaction requirement
shall not apply to any increase in percentage beneficial ownership of Common
Shares resulting solely from a change in the aggregate number of Common Shares
outstanding, provided that any acquisition after such change which results in
any Person or group beneficially owning fifteen percent (15%) or more of the
number of outstanding Common Shares (or an additional 5% or more of the number
of Common Shares after the last acquisition which triggered the requirement for
a Class A Protection Transaction) shall be subject to any Class A Protection
Transaction requirement that would be imposed pursuant to this Section 9.
Section 9.7. In connection with Sections 9.1 through 9.4 of
this Section 9, the following Common Shares shall be excluded for the purpose
of determining the shares beneficially owned by such Person or group but not
for the purpose of determining shares outstanding:
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(a) shares beneficially owned by such Person or group at
the Effective Time;
(b) shares acquired by will or by the laws of descent and
distribution, or by gift that is made in good faith
and not for the purpose of circumventing this Section
9 or by foreclosure of a bona fide loan;
(c) shares acquired upon issuance or sale by the
Corporation;
(d) shares acquired by operation of law (including a
merger or consolidation effected for the purpose of
recapitalizing such Person or reincorporating such
Person in another jurisdiction but excluding a merger
or consolidation effected for the purpose of
acquiring another Person);
(e) shares acquired in exchange for Class A Common Shares
by a holder of Class A Common Shares (or by a parent,
lineal descendant or donee of such holder of Class A
Common Shares who received such Class A Common Shares
from such holder) if the Class A Common Shares so
exchanged were acquired by such holder directly from
the Corporation as a dividend on Common Shares; and
(f) shares acquired by a plan of the Corporation
qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended, or any successor
provision thereto, or acquired by reason of a
distribution from such a plan.
Section 9.8. In connection with Sections 9.1 through 9.4 of
this Section 9, for purposes of calculating the number of Class A Common Shares
beneficially owned by any Persons or group:
(a) Class A Common Shares acquired by gift shall be
deemed to be beneficially owned by such Person or
member of a group if such gift was made in good faith
and not for the purpose of circumventing the
operations of this Section 9; and
(b) only Class A Common Shares owned of record by such
Person or member of a group or held by others as
nominees of such Person or member of a group and
identified as such to the Corporation shall be deemed
to be beneficially owned by such Person or group
(provided that Class A Common Shares with respect to
which such Person or member of a group
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has sole investment and voting power shall be
deemed to be beneficially owned thereby).
Section 9.9. To the extent that the voting power of any
Common Share cannot be exercised pursuant to this Section 9, that Common Share
shall not be included in the determination of the voting power of the
Corporation for any purpose under these Restated Articles of
Incorporation or the Ohio Revised Code.
Section 9.10. All calculations with respect to percentage
beneficial ownership of issued and outstanding shares of either Common Shares
or Class A Common Shares will be based upon the numbers of issued and
outstanding shares reflected in either the records of or a certificate from the
Corporation's stock transfer agent or reported by the Corporation on the last
to be filed of (i) the Corporation's most recent Annual Report on Form 10-K,
(ii) its most recent Quarterly Report on Form 10-Q, (iii) its most recent
Current Report on Form 8-K, (iv) its most recent report on Form 10-C, and (v)
its most recent definitive proxy statement filed with the Securities and
Exchange Commission.
Section 9.11. For purposes of this Section 9, the term
"Person" means any individual, partnership, corporation, association, trust, or
other entity (other than the Corporation). Subject to Sections 9.7 and 9.8,
"beneficial ownership" shall be determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
successor regulation and the formation or existence of a "group" shall be
determined pursuant to Rule 13d-5(b) under the 1934 Act or any successor
regulation, subject to the following qualifications:
(a) relationships by blood or marriage between or among
any Persons will not constitute any of such Persons
as a member of a group with such other Person, absent
affirmative attributes of concerted action; and
(b) any Person acting in his official capacity as a
director or officer of the Corporation shall not be
deemed to beneficially own shares where such
ownership exists solely by virtue of such Person's
status as a trustee (or similar position) with
respect to shares held by plans or trusts for the
general benefit of employees or former employees of
the Corporation, and actions taken or agreed to be
taken by a Person in such Person's official capacity
as an officer or director of the Corporation will not
cause such Person to become a member of a group with
any other Person.
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Section 10. Conversion of Class A Common Shares. Each
outstanding Class A Common Share (whether or not then issued) shall convert
automatically into one Common Share upon the earliest to occur of:
(a) any time the aggregate of the outstanding Common
Shares and Class B Common Shares as reflected on the
stock transfer records of the Corporation is less
than 20% of the aggregate number of outstanding
Common Shares, Class A Common Shares and Class B
Common Shares. For purposes of the immediately
preceding sentence, any Common Shares, Class A Common
Shares or Class B Common Shares repurchased by the
Corporation and held as treasury shares or cancelled
by the Corporation shall not be deemed "outstanding"
from and after the date of repurchase;
(b) the date ("Conversion Date") which shall be ten years
from the Distribution Date of the Class A Common
Shares as defined in Section 9.1; provided, however,
that the Board of Directors by resolution adopted by
two-thirds of the entire number of Directors then in
office no earlier than thirty months and no later
than twenty-four months prior to the initial or any
subsequently established Conversion Date may extend
the Conversion Date for an additional five years.
Any such new Conversion Date and all subsequently
extended Conversion Dates may be extended in like
manner and for a like period; and
(c) upon resolution by the Board of Directors if, as a
result of the existence of the Class A Common Shares,
either the Common Shares or Class A Common Shares is,
or both are, excluded from quotation on the NASDAQ
National Market System, and all other national
quotation systems then in existence and are excluded
from trading on all the principal national securities
exchanges then in existence.
Upon such conversion, the total number of Common Shares the Corporation shall
have authority to issue shall be 60,000,000 shares, and the total number of
Class A Common Shares shall be zero (0) shares and all references to Class A
Common Shares shall be of no further force or effect. In making the
determination referred to in (a) or (c) of this Section 10, the Board of
Directors may conclusively rely on any information or documentation available
to it, including but not limited to filings made with the United States
Securities and Exchange Commission, any stock exchange, the National
Association of Securities Dealers, Inc. or any national quotation system or any
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other government or regulatory agency, or the records of or certification from
the Corporation's stock transfer agent. At such time as set forth in (a), (b)
or (c) of this Section 10, the Class A Common Shares shall be deemed to be
automatically converted into Common Shares and stock certificates formerly
representing Class A Common Shares shall thereupon and thereafter be deemed to
represent a like number of Common Shares. The determination of the Board of
Directors that either (a) or (c) of this Section 10 has occurred shall be
conclusive and binding and the conversion of each Class A Common Share into one
Common Share shall remain effective regardless of whether either (a) or (c) has
occurred in fact.
ARTICLE FIFTH: The Board of Directors of the Corporation is
hereby authorized to fix at any time and from time to time the amount of
consideration for which the Corporation may from time to time issue its shares
without par value, whether now or hereafter authorized and whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class.
ARTICLE SIXTH: The Corporation may from time to time pursuant
to authorization by the Board of Directors and without action by the
shareholders, purchase or otherwise acquire shares of the Corporation of any
class or classes in such manner, upon such terms and in such amounts as the
Board of Directors shall determine without regard to whether less consideration
could be paid upon the purchase of the same number of shares of another class,
subject, however, to such limitation or restriction, if any, as is contained in
the express terms of any class of shares of the Corporation outstanding at the
time of the purchase or acquisition in question.
ARTICLE SEVENTH: The holders of shares of the Corporation
shall not be entitled to cumulative voting rights in elections of Directors.
ARTICLE EIGHTH: Section 1. A higher than majority
shareholder vote for certain Business Combinations (as defined below) shall be
required as follows:
A. In addition to any affirmative vote required by law or
these Articles or the terms of any series of Preferred Stock
or any other securities of the Corporation and except as
otherwise expressly provided in Section 2 of this Article
Eighth:
(1) any merger or consolidation of the
Corporation or any Subsidiary with (i) any Interested
Shareholder or with (ii) any other corporation
(whether or not itself an Interested
<PAGE> 12
Page 12
Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate
of an Interested Shareholder;
(2) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or
a series of transactions whether or not related) to
an Interested Shareholder (or an Affiliate or
Associate of an Interested Shareholder) of any assets
of the Corporation or a Subsidiary having an
aggregate Fair Market Value of $1,000,000 or more;
(3) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or
a series of transactions whether or not related) to
or with the Corporation or a Subsidiary of any assets
of an Interested Shareholder (or an Affiliate or
Associate of an Interested Shareholder) having an
aggregate Fair Market Value of $1,000,000 or more;
(4) the issuance or sale by the Corporation or any
Subsidiary (in one transaction or a series of
transactions whether or not related) of any
securities of the Corporation or of any Subsidiary to
an Interested Shareholder or any Affiliate or
Associate of an Interested Shareholder in exchange
for cash, securities or other consideration (or a
combination thereof) having an aggregate Fair Market
Value of $1,000,000 or more except an issuance of
securities upon conversion of convertible securities
of the Corporation or of a Subsidiary which were not
acquired by such Interested Shareholder (or such
Affiliate or Associate) from the Corporation or a
Subsidiary;
(5) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation
proposed by or on behalf of an Interested Shareholder
or an Affiliate or Associate of an Interested
Shareholder; or
(6) any reclassification of securities (including
any reverse stock split) or recapitalization of the
Corporation or a Subsidiary or any other transaction
(whether or not with or into or otherwise involving
an Interested Shareholder) which has the effect,
directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity securities or securities convertible
into equity
<PAGE> 13
Page 13
securities of the Corporation or a Subsidiary which
is directly or indirectly owned by any Interested
Shareholder or an Affiliate or Associate of an
Interested Shareholder;
shall require the affirmative vote of (i) the holders of at
least two-thirds of the combined voting power of the then
outstanding shares of capital stock of the Corporation
entitled to vote generally in an annual election of Directors
or entitled by law or by the terms of the capital stock to
vote on the transaction in question (the "Voting Shares") and
(ii) the holders of at least two-thirds of the combined voting
power of the then outstanding Voting Shares held by
Disinterested Shareholders, in each case voting together as a
single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that
a lesser percentage may be specified, by law, by any other
provisions of these Articles or by the terms of any series of
Preferred Stock or any other securities of the Corporation.
B. The term "Business Combination" as used in this Article
Eighth shall mean any transaction which is referred to in any
one or more of clauses (1) through (6) of paragraph A of
Section 1 of this Article Eighth.
Section 2. The provisions of Section 1 of this Article Eighth
shall not be applicable to any Business Combination, and such Business
Combination shall require only such affirmative vote (if any) as is required by
law, any other provisions of these Articles, the terms of any of the classes or
series of Common Equity of the Corporation or of any of the classes or series
of capital stock of the Corporation entitled to a preference over the Common
Equity as to dividends or upon liquidation, or the terms of any other
securities of the Corporation, if all of the conditions specified in either of
the following paragraphs A or B are met:
A. The Business Combination shall have been approved by
a majority of the Disinterested Directors; or
B. All the following six conditions shall have been met:
(1) The transaction constituting the Business
Combination shall provide for a consideration to be
received by holders of Common Equity in exchange for
their Common Equity, and the aggregate amount of the
cash and the Fair Market Value as of the date of the
consummation of the Business Combination of
consideration other than
<PAGE> 14
Page 14
cash to be received per share by holders of Common
Equity in such Business Combination shall be at least
equal to the highest of the following:
(a) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of Common
Equity beneficially owned by the Interested
Shareholder which were acquired (x) within
the two-year period immediately prior to the
first public announcement of the proposed
Business Combination (the "Announcement
Date") or (y) in the transaction in which it
became an Interested Shareholder, whichever
is higher;
(b) the Fair Market Value per share of
Common Equity on the Announcement Date or on
the date on which the Interested Shareholder
became an Interested Shareholder (the
"Determination Date"), whichever is higher;
and
(c) (if applicable) the price per share
equal to the Fair Market Value per share of
Common Equity determined pursuant to clause
(b) immediately preceding, multiplied by the
ratio of (x) the highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of Common
Equity beneficially owned by the Interested
Shareholder which were acquired within the
two-year period immediately prior to the
Announcement Date to (y) the Fair Market
Value per share of Common Equity on the first
day in such two-year period on which the
Interested Shareholder beneficially owned any
shares of Common Equity, whether or not such
Shareholder was an Interested Shareholder on
that day.
(2) If the transaction constituting the Business
Combination shall provide for a consideration to be
received by holders of any class of outstanding
Voting Shares other than Common Equity, the aggregate
amount of the cash and the Fair Market Value as of
the date of the consummation of the Business
Combination of consideration other than cash to be
received per share by holders of such Voting Shares
shall be at least equal to the
<PAGE> 15
Page 15
highest of the following (it being intended that the requirements of
this clause B(2) shall be required to be met with respect to every
class of outstanding Voting Shares, whether or not the Interested
Shareholder beneficially owns any shares of a particular class of
Voting Shares):
(a) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of such
class of Voting Shares beneficially owned by
the Interested Shareholder which were
acquired (x) within the two-year period
immediately prior to the Announcement Date or
(y) in the transaction in which it became an
Interested Shareholder, whichever is higher;
(b) (if applicable) the highest preferential
amount per share to which the holders of
shares of such class of Voting Shares are
entitled in the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation;
(c) the Fair Market Value per share of such
class of Voting Shares on the Announcement
Date or on the Determination Date, whichever
is higher; and
(d) (if applicable) the price per share
equal to the Fair Market Value per share of
such class of Voting Shares determined
pursuant to clause (c) immediately preceding,
multiplied by the ratio of (x) the highest
per share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any
shares of such class of Voting Shares
beneficially owned by the Interested
Shareholder which were acquired within the
two-year period immediately prior to the
Announcement Date to (y) the Fair Market
Value per share of such class of Voting
Shares on the first day in such two-year
period on which the Interested Shareholder
beneficially owned any shares of such class
of Voting Shares, whether or not such
Shareholder was an Interested Shareholder on
that day.
<PAGE> 16
Page 16
(3) The consideration to be received by holders of a
particular class of Voting Shares or Common Equity
shall be in cash or in the same form as was
previously paid in order to acquire shares of such
class of shares which are beneficially owned by the
Interested Shareholder and, if the Interested
Shareholder beneficially owns shares of any class of
shares which were acquired with varying forms of
consideration, the form of consideration to be
received by the holders of such class of shares shall
be either cash or the form used to acquire the
largest number of shares of such class of Voting
Shares beneficially owned by it. The prices
determined in accordance with clauses (1) and (2) of
paragraph B of this Section 2 shall be subject to an
appropriate adjustment in the event of any stock
dividend, stock split, subdivision, combination of
shares or similar event.
(4) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation
of such Business Combination:
(a) except as approved by a majority of the
Disinterested Directors, there shall have
been no failure to declare and pay at the
regular date therefor any full quarterly
dividends (whether or not cumulative) on any
outstanding Preferred Stock or other capital
stock entitled to a preference over the
Common Equity as to dividends or upon
liquidation;
(b) except as approved by a majority of the
Disinterested Directors, there shall have
been (x) no reduction in the annual amount of
dividends paid on the Common Equity (except
as necessary to reflect any subdivision of
the Common Equity) and (y) no failure to
increase the annual amount of dividends as
necessary to prevent any such reduction in
the event of any reclassification (including
any reverse stock split), recapitalization,
reorganization or similar transaction which
has the effect of reducing the number of
outstanding shares of the Common Equity;
(c) such Interested Shareholder shall not
have become the beneficial owner of any
additional Voting Shares except as part of
the transaction in which it became an
Interested Shareholder; and
<PAGE> 17
Page 17
(d) there shall have always been at least
four (4) Disinterested Directors on
the Board of Directors.
(5) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder
shall not have received the benefit, directly or
indirectly (except proportionately as a shareholder),
of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in
anticipation of or in connection with such Business
Combination or otherwise.
(6) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or
regulations) shall be mailed to shareholders at least
thirty (30) days prior to the consummation of such
Business Combination (whether or not such proxy or
information statement is required to be mailed
pursuant to such Act, rules, regulations or
subsequent provisions).
Section 3. For purposes of this Article Eighth:
A. A "person" shall mean any individual, a partnership,
a corporation, an association, a trust or other entity.
B. "Interested Shareholder" at any particular time shall
mean any person (other than the Corporation or any Subsidiary
or any employee benefit plan or trust of the Corporation or
any Subsidiary) who or which:
(1) is at such time the beneficial owner, directly
or indirectly, of five percent (5%) or more of the
voting power of the Voting Shares;
(2) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to
the date in question was the beneficial owner,
directly or indirectly, of five percent (5%) or more
of the voting power of the Voting Shares; or
(3) is at such time an assignee of or has otherwise
succeeded to the beneficial ownership of any Voting
Shares which were at any time within
<PAGE> 18
Page 18
the two-year period immediately prior to the date in
question beneficially owned by an Interested
Shareholder (as defined in (1) and (2) above), if
such assignment or succession shall have occurred in
the course of a transaction or series of transactions
not involving a public offering within the meaning of
the Securities Act of 1933.
C. "Disinterested Shareholder" shall mean a shareholder
of the Corporation who is not an Interested Shareholder (or an
Affiliate or an Associate of an Interested Shareholder) who is
involved, directly or indirectly, in the proposed Business
Combination in question, except that as used in Section 6 of
this Article Eighth, the term "Disinterested Shareholder"
shall mean a shareholder of the Company who is not an
Interested Shareholder.
D. A person shall be a "beneficial owner" of any Voting
Shares:
(1) which such person or any of its Affiliates
or Associates beneficially owns, directly or
indirectly;
(2) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether or
not such right is exercisable immediately) pursuant
to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange
rights, warrants or options or otherwise or (ii) the
right to vote pursuant to any agreement, arrangement
or understanding; or
(3) which are beneficially owned, directly or
indirectly, by any other person with which such
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of
any Voting Shares.
E. For the purpose of determining whether a person is an
Interested Shareholder pursuant to paragraph B of this Section
3, the number of Voting Shares deemed to be outstanding shall
include shares deemed owned by an Interested Shareholder
through application of paragraph D of this Section 3 but shall
not include any other Voting Shares which may be issuable
pursuant to any agreement, arrangement or understanding, or
upon the exercise of conversion rights, exchange rights,
warrants or options or otherwise.
<PAGE> 19
Page 19
F. "Affiliate" means a person that directly, or indirectly
through one or more intermediaries, controls, or is controlled
by, or is under common control with, the person specified.
"Associate", which is used to indicate a relationship with any
person, means (1) any corporation or organization (other than
the Corporation or a majority-owned subsidiary of the
Corporation) of which such person is an officer or partner or
is, directly or indirectly, the beneficial owner of ten
percent (10%) or more of any class of equity securities, (2)
any trust or other estate in which such person has a
substantial beneficial interest or as to which such person
serves as trustee or in a similar fiduciary capacity, and (3)
any relative or spouse of such person, or any relative of such
spouse, who has the same home as such person or who is a
director or officer of the Corporation or any of its parents
or subsidiaries.
G. "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly,
by the Corporation; provided, however, that for the purposes
of the definition of Interested Shareholder set forth in
paragraph B of this Section 3, the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
H. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with, and not a representative
or nominee of, the Interested Shareholder who is involved,
directly or indirectly, in the proposed Business Combination
in question, and was (a) a member of the Board prior to the
time that such Interested Shareholder became an Interested
Shareholder or (b) recommended to succeed a Disinterested
Director by a majority of the Disinterested Directors then on
the Board.
I. "Fair Market Value" means: (a) in the case of stock, the
highest closing sale price (or closing bid price for any day
on which a closing sale price is not available) during the
30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock
Exchange Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or if such
stock is not listed on such Exchange, on the principal United
States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or if such
stock is not listed on any
<PAGE> 20
Page 20
such exchange, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding
the date in question on the NASDAQ or any other system then in
use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in
good faith; and (b) in the case of property other than cash or
stock, the fair market value of such property on the date in
question as determined by a majority of the Disinterested
Directors in good faith. If different classes of Common
Equity of the Corporation have different Fair Market Values
based on the determinations to be made under subsection (a),
then the term "Fair Market Value" of Common Equity shall mean
the highest value then ascribed to a share of any of the
various classes of Common Equity.
J. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than
cash to be received" as used in paragraph B of Section 2 of
this Article Eighth shall include the shares of Common Equity
and the shares of any other class of outstanding Voting Shares
retained by the holders of such shares.
Section 4. A majority of the Disinterested Directors of the
Corporation shall have the power and duty to determine for the purpose of this
Article Eighth, on the basis of information known to them after reasonable
inquiry, (1) whether a person is an Interested Shareholder, (2) the number of
Voting Shares beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, (4) whether the requirements of Section 2 of
this Article Eighth have been met with respect to any Business Combination, and
(5) whether the assets which are subject to any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
this Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $1,000,000 or more. Any such determination made
in good faith shall be binding and conclusive on all parties.
Section 5. Nothing contained in this Article Eighth shall be
construed to relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
Section 6. In addition to any requirements of law and any
other provisions of these Articles or the terms of any class or series of
capital stock of the Corporation entitled to a preference over the Common
Equity as to dividends or upon liquidation, or the terms of any other
securities of the Corporation (and notwithstanding the fact that a lesser
<PAGE> 21
Page 21
percentage may be specified by law, these Articles or any such terms), the
affirmative vote of
A. the holders of two-thirds or more of the combined voting
power of the Voting Shares, voting together as a single class,
and
B. two-thirds of the combined voting power of the Voting
Shares held by the Disinterested Shareholders, voting together
as a single class, shall be required to amend, alter or repeal
or adopt any provision inconsistent with, this Article Eighth.
ARTICLE NINTH: The foregoing Restated Articles of
Incorporation hereby supersede existing Amended Articles of Incorporation as
heretofore amended.
<PAGE> 1
EXHIBIT 2
T H E L I N C O L N E L E C T R I C C O M P A N Y
-------------------------------------------------------
RESTATED
CODE OF REGULATIONS*
-------------------
ARTICLE I
---------
SHARES
------
1. REGISTRATION AND TRANSFER OF CERTIFICATES. Each shareholder of the
Corporation whose shares have been fully paid for shall be entitled to
a certificate or certificates showing the number of shares registered
in his name on the books of the Corporation. Each certificate shall
be signed by the Chairman of the Board or the President or
Vice-President of the Corporation and the Secretary or Assistant
Secretary or the Treasurer or an Assistant Treasurer. Shares shall be
transferred only on the books of the Corporation by the holder
thereof, in person or by Attorney, upon surrender and cancellation of
certificates for a like number of shares.
2. SUBSTITUTED CERTIFICATES. The Board of Directors may authorize the
issuance of a new certificate in place of any certificate theretofore
issued by the Corporation alleged to have been lost or destroyed; in
its discretion requiring the owner of the lost or destroyed
certificate, or the legal representative, to give the Corporation a
bond in such sum as the Board of Directors may direct as indemnity
against any claim that may be made against the Corporation; or, if in
the judgment of the Board it is proper to do so, a new certificate may
be issued without requiring any bond.
[FN]
* Represents a compilation of the Company's Amended and Restated Code of
Regulations, as amended.
<PAGE> 2
2
3. SHAREHOLDERS ENTITLED TO NOTICE AND TO VOTE. The Board of Directors
may fix a time not exceeding forty-five (45) days preceding the date
of any meeting of shareholders, or any dividend payment date, or any
date for the allotment of rights, as a record date for the
determination of the shareholders entitled to notice of such meeting,
or to vote thereat, or to receive such dividends or rights, as the
case may be, or in lieu thereof, the Board of Directors may close the
books of the Corporation against the transfer of shares during the
whole or any part of such period.
ARTICLE II
----------
MEETINGS OF SHAREHOLDERS
------------------------
1. ANNUAL MEETING. The Annual Meeting of shareholders shall be held on
the fourth Tuesday of the month of May each year at the principal
office of the Corporation, if not a legal holiday, and if a legal
holiday, then on the next day not a legal holiday, for the election of
Directors and the consideration of reports to be laid before the
meeting. Upon due notice there may also be considered and acted upon
at the Annual Meeting any matter which can properly be considered and
acted upon at a special meeting, in which case and for which purpose
the Annual Meeting shall also be considered as, and shall be, a
special meeting. When an Annual Meeting is not held or Directors are
not elected thereat, they may be elected at a special meeting called
for that purpose.
<PAGE> 3
3
2. SPECIAL MEETINGS. Special meetings of the shareholders may be called
by the President, or a Vice-President, or the Chairman of the Board of
Directors, or by the Executive Committee, or by a majority of the
Board of Directors, acting with or without a meeting, or by persons
who hold twenty-five percent of all the shares outstanding and
entitled to vote thereat, at such place or places as may be designated
in the call therefore, and notice thereof; provided, however, that a
meeting for the election of Directors may be held only within the
State of Ohio.
3. NOTICE OF MEETINGS. Notice of meetings of shareholders shall be given
in writing by the Secretary, or in his absence by the Chairman of the
Board or President or a Vice-President, and such notice shall state
the purpose or purposes for which the meeting is called, and the time
and place where it is to be held, and shall be served or mailed to
each shareholder of record entitled to vote at such meeting or
entitled to notice thereof, at least ten (10) days prior to the
meeting. If mailed, it shall be directed to the shareholder at his
address as it appears upon the records of the Corporation. In the
event of the transfer of shares after notice has been given and prior
to the holding of the meeting, it shall not be necessary to serve
notice upon the transferee. Notice of the time, place and purpose of
any meeting of shareholders may be waived by the written assent of
every shareholder entitled to notice, filed with
<PAGE> 4
4
or entered upon the records of the meeting, either before or after
the holding thereof.
5. QUORUM. The holders of a majority of the shares issued and
outstanding, entitled to vote, present either in person or by proxy,
shall constitute a quorum, unless a larger number is required by the
laws of Ohio, in which case the number required by the laws of Ohio,
present either in person or by proxy, shall constitute a quorum, but
any less number may adjourn the meeting from time to time, until a
quorum is obtained, and no further notice of such adjourned meeting
need be given other than by announcement at the meeting at which such
adjournment is taken.
6. PROXIES. Each shareholder entitled to vote shall be entitled to one
vote, either in person or by proxy, for each share of the Corporation
standing in his name at the time of the closing of the books for such
meeting. No proxy shall be valid after the expiration of eleven (11)
months from the date thereof, unless a longer time be specified
therein. Proxies shall be in writing but need not be sealed,
witnessed or acknowledged and shall be filed with the Secretary at or
before the meeting.
<PAGE> 5
5
ARTICLE III
-----------
BOARD OF DIRECTORS
------------------
1. NUMBER AND ELECTION. The powers and authority of the Corporation
shall be exercised and its business managed and controlled by a Board
of Directors. The election of Directors shall be by ballot and shall
be held at the Annual Meeting of shareholders or at a special meeting
called for that purpose. The maximum number of the Directors of the
Corporation shall be eighteen. Subject to such maximum, the number of
Directors may be fixed or changed (a) at a meeting of the shareholders
called for the purpose of electing Directors at which a quorum is
present, by the affirmative vote of the holders of a majority of the
shares that are represented at the meeting and entitled to vote on the
proposal, and (b) by the Directors, by the vote of a majority of their
number, who may also fill any Director's office that is created by an
increase in the number of Directors. The Directors shall be divided
into three classes, as nearly equal in number as possible, as
determined by the Board of Directors of the Corporation. A separate
election shall be held for each class of Directors as hereinafter
provided. Directors elected at the first election for the first class
shall hold office for the term of one year from the date of their
election and until the election of their successors, Directors elected
at the first election for the second class shall hold office for the
term of two years from the date of their election and until the
election of their successors, and Directors elected at the
<PAGE> 6
6
first election for the third class shall hold office for the term of
three years from the date of their election and until the election of
their successors. At each annual election, the successors to the
Directors of each class whose terms shall expire in that year shall be
elected to hold office for the term of three years from the date of
their election and until the election of their successors. In case of
any increase in the number of Directors of any class, any additional
Directors elected to such class shall hold office for a term which
shall coincide with the term of such class.
2. VACANCY AND REMOVAL. All Directors, for whatever terms elected, shall
hold office subject to applicable statutory provisions as to the
creation of vacancies and removal; provided, however, that all
Directors, all the Directors of a particular class or any individual
Director may be removed from office, without assigning any cause, only
by the affirmative vote of the holders of at least two-thirds of the
voting power of the outstanding shares of stock entitled to vote
generally on the election of Directors.
3. RESIGNATION. Any Director may resign at any time. Such resignation
shall be made in writing and shall take effect at the time specified
therein. If no time is specified, it shall become effective from the
time of its receipt by the Corporation, and the Secretary shall record
such resignation, noting the day, hour and minute of its
<PAGE> 7
7
reception. The acceptance of a resignation shall not be necessary to
make it effective.
4. MEETINGS. Directors may meet at such times and at such places within
or without the State of Ohio as they may determine. A majority of the
Board of Directors shall be necessary to constitute a quorum for the
transaction of business, and the act of a majority of Directors
present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
5. BY-LAWS. The Board of Directors may adopt By-Laws for its own
government not inconsistent with the Articles of Incorporation or
Regulations of the Corporation.
ARTICLE IV
----------
INDEMNIFICATION AND INSURANCE
-----------------------------
1. INDEMNIFICATION. (a) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the
fact that he is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a Director, trustee, officer, employee or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, to the full
extent permitted from time to time under the laws
<PAGE> 8
8
of the State of Ohio; provided, however, that the Corporation shall
indemnify any such agent (as opposed to any Director, officer or
employee) of the Corporation to an extent greater than that required
by law only if and to the extent that the Directors may, in their
discretion, so determine.
(b) The indemnification authorized by this Article shall
not be exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification hereunder or under the
Articles or any agreement, vote of shareholders or disinterested
Directors, or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a Director,
trustee, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(c) No amendment, termination or repeal of this Article
IV shall affect or impair in any way the rights of any Director or
officer of the Corporation to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of,
or relating to, any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or repeal.
2. LIABILITY INSURANCE. The Corporation may purchase and maintain
insurance or furnish similar protection, including but not limited to
trust funds, letters of credit or self-insurance, on behalf of or for
any person who is or was a
<PAGE> 9
9
Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a Director, trustee,
officer, employee or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under this Article. Insurance may be
purchased from or maintained with a person in which the Corporation
has a financial interest.
ARTICLE V
---------
NOMINATION OF DIRECTOR CANDIDATES
---------------------------------
1. NOTIFICATION OF NOMINEES. Nominations for the election of Directors
may be made by the Board of Directors or a committee appointed by the
Board of Directors or by any shareholder entitled to vote in the
election of Directors generally. However, any shareholder entitled to
vote in the election of Directors generally may nominate one or more
persons for election as Directors at a meeting only if written notice
of such shareholder's intent to make such nomination or nominations
has been received by the Secretary of the Corporation not less than 80
days in advance of such meeting; provided, however, that in the event
that the date of the meeting was not publicly announced by the
Corporation by mail, press release or otherwise more than 90 days
prior to the meeting, notice by the shareholder to be timely must
<PAGE> 10
10
be delivered to the Secretary of the Corporation not later than the
close of business on the tenth day following the day on which such
announcement of the date of the meeting was communicated to
shareholders. Each such notice shall set forth: (a) the name and
address of the shareholder who intends to make the nomination and of
the person or persons to be nominated; (b) a representation that the
shareholder is a holder of record of stock of the Corporation entitled
to vote for the election of Directors on the date of such notice and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) a description of all
arrangements or understandings between the shareholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each
nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the
consent of each nominee to serve as a Director of the Corporation if
so elected.
2. SUBSTITUTION OF NOMINEES. In the event that a person is validly
designated as a nominee in accordance with paragraph 1 above, and
shall thereafter become unable or unwilling to stand for election to
the Board of Directors, the Board of
<PAGE> 11
11
Directors or the shareholder who proposed such nominee, as the case
may be, may designate a substitute nominee upon delivery, not fewer
than five days prior to the date of the meeting for the election of
such nominee of a written notice to the Secretary setting forth such
information regarding such substitute nominee as would have been
required to be delivered to the Secretary pursuant to paragraph 1
above had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a
Director of the Corporation, if elected, of each such substitute
nominee.
3. COMPLIANCE WITH PROCEDURES. If the chairman of the meeting for the
election of Directors determines that a nomination of any candidate
for election as a Director at such meeting was not made in accordance
with the applicable provisions of paragraphs 1 and 2 above, such
nomination shall be void.
ARTICLE VI
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COMMITTEES
----------
1. CREATION AND ELECTION. The Board of Directors may create, from time
to time and from its own number, an Executive Committee or any other
committee or committees of the Board of Directors to act in the
intervals between meetings of the Board of Directors and may delegate
to such committee or committees any of the authority of the Board of
Directors other than that of filling vacancies among the Board of
<PAGE> 12
12
Directors or in any committee of the Board of Directors. No committee
shall consist of less than three Directors. The Board of Directors
may appoint one or more Directors as alternate members of any such
committee, who may take the place of any absent member or members at a
meeting of such committee. Except as above provided and except to the
extent that its powers are limited by the Directors, the Executive
Committee during the intervals between meetings of the Directors shall
possess and may exercise, subject to the control and direction of the
Directors, all of the powers of the Directors in the management and
control of the business of the Corporation, regardless of whether such
powers are specifically conferred by these Regulations. All action
taken by the Executive Committee shall be reported to the Directors at
their first meeting thereafter.
2. QUORUM AND ACTION. Unless otherwise ordered by the Board of
Directors, a majority of the members of any committee appointed by the
Board of Directors pursuant to this Article VI shall constitute a
quorum at any meeting thereof, and the act of a majority of the
members present at a meeting at which a quorum is present shall be the
act of such committee. Action may be taken by any such committee
without a meeting by a writing or writings signed by all of its
members. Any such committee shall prescribe its own rules for calling
and holding meetings and its method of procedure, subject to any rules
prescribed by the Board of
<PAGE> 13
13
Directors, and shall keep a written record of all action taken by it.
ARTICLE VII
-----------
OFFICERS
--------
1. OFFICERS. The Corporation may have a Chairman of the Board and shall
have a President (both of whom shall be Directors), a Secretary and a
Chief Financial Officer (who shall serve as Treasurer under Ohio law).
The Corporation may also have one or more Vice-Presidents and such
other officers and assistant officers as the Board of Directors may
deem necessary. All of the officers and assistant officers shall be
elected by the Board of Directors.
2. AUTHORITY AND DUTIES OF OFFICERS. The officers of the Corporation
shall have such authority and shall perform such duties as are
customarily incident to their respective offices, or as may be
specified from time to time by the Board of Directors regardless of
whether such authority and duties are customarily incident to such
office.
ARTICLE VIII
------------
COMPENSATION OF DIRECTORS AND OFFICERS
--------------------------------------
The compensation of the Directors and officers of the Corporation shall be such
as the Board of Directors may from time to time designate.
<PAGE> 14
14
ARTICLE IX
----------
AMENDMENTS
----------
These regulations may be altered, changed, amended or repealed by the written
consent of the holders of record of shares entitling them to exercise not less
than two-thirds of the voting power of the Corporation, or at a meeting called
and held for that purpose, by the affirmative vote of the holders of record of
shares entitling them to exercise not less than a majority of the voting power
of the Corporation; provided, however, that paragraphs 1 and 2 of Article III
and all of Article V shall not be altered, changed, amended or repealed, nor
shall any provision inconsistent with such provisions be adopted, without the
affirmative vote of the holders of record of shares entitling them to exercise
not less than two-thirds of the voting power of the Corporation entitled to
vote generally in the election of Directors.
<PAGE> 1
Exhibit 5
A
CUSIP 533543 20 3
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
THE LINCOLN ELECTRIC COMPANY
CLEVELAND, OHIO
THIS CERTIFIES THAT
is the owner of Class A Common Shares
without par value, fully paid and non-assessable, of
THE LINCOLN ELECTRIC COMPANY
transferable on the books of said Company in person or by duly authorized
attorney upon surrender of this Certificate duly endorsed.
This certificate shall not be valid until countersigned by the Transfer
Agent and registered by the registrar.
WITNESS the seal of the Company and the signatures of its duly authorized
officers.
Dated:
/s/ F.G. Stone /s/ D.F. Hastings
- -------------------- [seal] ---------------------
Secretary Chairman of the Board
Countersigned and Registered
KEYCORP SHAREHOLDER SERVICES, INC.
(Cleveland, Ohio)
Transfer Agent and Registrar
By
Authorized Signature
<PAGE> 2
For value Received hereby sell, assign, and transfer unto
------------------------
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
of the Shares represented by the within Certificate
and do hereby irrevocably constitute and appoint
Attorney
- ----------------------------------------------------------------------
to transfer the said Shares on the Books of the within named Company with full
power of substitution in the premises
Dated 19
------------------------ ----
In Presence of
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NOTICE THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER
