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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 2, 1998
THE LINCOLN ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Ohio 0-1402 34-0359955
(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
22801 St. Clair Avenue, Cleveland, OH 44117
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 481-8100
N/A
(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant.
Pursuant to an Agreement of Merger, Lincoln Electric Merger Co., an
Ohio corporation, merged with and into The Lincoln Electric Company, an Ohio
corporation (the "Company"), with the Company being the surviving corporation
(the "Merger"). In connection with the Merger, each of the Company's outstanding
Common Shares and Class A Common Shares was converted into two common shares of
Lincoln Electric Holdings, Inc. ("Holding Common Shares"), an Ohio corporation
("Lincoln Electric Holdings"), with the result that Lincoln Electric Holdings is
the publicly held corporation and the Company is a wholly owned subsidiary of
Lincoln Electric Holdings. The shareholders of the Company immediately prior to
the Merger were the shareholders of Lincoln Electric Holdings immediately after
the Merger.
The Merger was effective on June 2, 1998. The Holding Common Shares are
deemed to be registered under Section 12(g) of the Securities Act of 1934, as
amended, pursuant to Rule 12g-3(a) promulgated thereunder.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
Exhibits
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2 Agreement of Merger dated as of May 19, 1998 made by and among Lincoln
Electric Merger Co., The Lincoln Electric Company, and Lincoln Electric
Holdings, Inc.
3(a) Restated Articles of Incorporation of Lincoln Electric Holdings, Inc.
3(b) Code of Regulations of Lincoln Electric Holdings, Inc.
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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 hereunto duly authorized.
THE LINCOLN ELECTRIC COMPANY
By: /s/ H. Jay Elliott
------------------------------------------
H. Jay Elliott
Senior Vice President, Chief Financial
Officer and Treasurer
Date: June 2, 1998
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
- ------- ----------------------
<S> <C>
2 Agreement of Merger dated as of May 19, 1998 made by and among Lincoln
Electric Merger Co., The Lincoln Electric Company, and Lincoln Electric
Holdings, Inc.
3(a) Restated Articles of Incorporation of Lincoln Electric Holdings, Inc.
3(b) Code of Regulations of Lincoln Electric Holdings, Inc.
</TABLE>
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Exhibit 2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "AGREEMENT"), dated as of May
19, 1998, is made by and among LINCOLN ELECTRIC MERGER CO., an Ohio corporation
("MERGER CO."), THE LINCOLN ELECTRIC COMPANY, an Ohio corporation ("LINCOLN"),
and LINCOLN ELECTRIC HOLDINGS, INC., an Ohio corporation ("HOLDING COMPANY").
RECITALS
WHEREAS, Merger Co. is a corporation duly organized and
existing under the laws of the State of Ohio, and the authorized capital stock
of Merger Co. consists of 100 common shares, without par value, 100 shares of
which are issued and outstanding and held by Holding Company, and no shares of
which are held in Merger Co.'s treasury;
WHEREAS, Lincoln is a corporation duly organized and existing
under the laws of the State of Ohio, and the authorized capital stock of Lincoln
consists of 60,000,000 common shares, without par value (the "COMMON SHARES"),
and 60,000,000 class A common shares, without par value (the "CLASS A COMMON
SHARES"), 10,777,834 and 13,862,190 shares of which, respectively, are issued
and outstanding, and no shares of which are held in Lincoln's treasury.
WHEREAS, Holding Company is a corporation duly organized and
existing under the laws of the State of Ohio, and the authorized capital stock
of Holding Company consists of 120,000,000 common shares, without par value (the
"HOLDING COMMON SHARES"), and 5,000,000 preferred shares, without par value (the
"PREFERRED SHARES"), ten of which Holding Common Shares have been issued.
WHEREAS, Lincoln and Merger Co. desire to effect a merger
whereby Merger Co. will merge with and into Lincoln (the "MERGER"), with Lincoln
to be the surviving corporation;
WHEREAS, the respective boards of directors of Merger Co.,
Holding Company and Lincoln have adopted resolutions approving this Agreement,
the execution and delivery of this Agreement and the transactions contemplated
hereby, and have determined that it is advisable that Merger Co. be merged with
and into Lincoln, pursuant to and in accordance with the applicable laws of the
State of Ohio and otherwise upon the terms and conditions set forth herein;
WHEREAS, the board of directors of Holding Company has adopted
resolutions approving the conversion of shares of Lincoln into Holding Common
Shares;
NOW THEREFORE, in consideration of the foregoing and the
respective covenants, agreements and conditions hereinafter contained, the
parties do hereby covenant and agree as follows:
AGREEMENTS
ARTICLE I
THE MERGER
1.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.2), and in accordance
with the terms and conditions of Ohio Revised Code Section 1701.78, Merger Co.
shall be merged with and into Lincoln. At the Effective Time, the separate
corporate existence of Merger Co. shall cease, and Lincoln shall continue its
existence as the surviving corporation under the laws of the State of Ohio (the
"SURVIVING CORPORATION"). The name of the Surviving Corporation shall be The
Lincoln Electric Company.
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1.2 EFFECTIVE TIME. Upon the satisfaction of the conditions
set forth in Article VI of this Agreement, a certificate of merger shall be duly
executed by each of Merger Co. and Lincoln and filed with the Secretary of State
of Ohio pursuant to Ohio Revised Code Section 1701.81. The Merger shall become
effective upon such filing in accordance with the provisions of Ohio Revised
Code Section 1701.81 (the "EFFECTIVE TIME").
1.3 EFFECTS OF THE MERGER. At the Effective Time of the
Merger, the effects of the Merger shall occur as provided in Ohio Revised Code
Section 1701.82. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, the name, identity, existence, rights,
privileges, powers, franchises, properties and assets of Lincoln shall continue
unaffected and unimpaired, and the separate existence of Merger Co. shall cease
and all of the rights, privileges, powers, franchises, properties and assets of
Merger Co. shall be vested in Lincoln.
ARTICLE II
THE SURVIVING CORPORATION
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation
of the Surviving Corporation, effective as of the Effective Time, will be as set
forth as Exhibit A; and shall be the Articles of Incorporation of the Surviving
Corporation until altered, amended or repealed in accordance with the provisions
thereof and with the Ohio Revised Code.
2.2 CODE OF REGULATIONS. The Code of Regulations of the
Surviving Corporation, effective as of the Effective Time, will be as set forth
as Exhibit B; and shall be the Code of Regulations of the Surviving Corporation
until altered, amended or repealed in accordance with the provisions thereof and
with the Ohio Revised Code.
2.3 DIRECTORS OF SURVIVING CORPORATION. Each person who is a
director of Merger Co. immediately prior to the Effective Time shall continue to
be a director of the Surviving Corporation from and after the Effective Time
until his or her successor is duly elected or appointed, or until his or her
death, resignation or removal.
2.4 OFFICERS OF SURVIVING CORPORATION. The officers of Lincoln
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation from and after the Effective Time until his or her successor is duly
elected or appointed, or until his or her death, resignation or removal.
2.5 DIVIDENDS. Holding Company and Merger Co. hereby consent
to any declaration by Lincoln prior to the Effective Time of any cash dividends
payable to shareholders of Lincoln who are such as of any date prior to the
Effective Time which is selected as the record date for such cash dividend. If
the payment date for such cash dividend is prior to the Effective Time, Holding
Company and Merger Co. hereby consent to the payment by Lincoln of such cash
dividend. If the payment date for such cash dividend is after the Effective
Time, then Lincoln, as the Surviving Corporation, shall be and remain
responsible for the payment of any such cash dividend, and Holding Company shall
cause Lincoln, as the Surviving Corporation, to pay such cash dividend to the
record date shareholders entitled thereto.
ARTICLE III
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. At the Effective Time:
(a) Each common share of Merger Co. issued and outstanding
prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be
converted into a common share of the Surviving Corporation.
(b) Each Common Share of Lincoln issued and outstanding prior
to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be
converted into two Holding Common Shares.
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(c) Each Class A Common Share of Lincoln issued and
outstanding prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder
thereof, be converted into two Holding Common Shares.
(d) Each Holding Common Share issued and outstanding prior to
the Effective Time shall, by virtue of the Merger and without
any action on the part of the holder thereof, be canceled and
the holder thereof shall become entitled to receipt of an
amount equal to the initial subscription price paid therefor.
3.2 SHARE CERTIFICATES. Each share certificate which
immediately prior to the Effective Time represented an outstanding common share
of Merger Co. shall represent a common share of the Surviving Corporation. After
the Effective Time, each share certificate representing an outstanding Common
Share or Class A Common Share shall represent the same number of Holding Common
Shares. From and after the Effective Time, the holders of certificates for
Common Shares and Class A Common Shares shall cease to have any rights as
shareholders of Lincoln (except such rights, if any, as they may have as
dissenting shareholders), and, except as aforesaid, their sole rights shall
pertain to the Holding Common Shares into which their Common Shares and Class A
Common Shares shall have been converted by the Merger.
3.3 DISSENTING LINCOLN SHAREHOLDERS. Each holder of one or
more Common Shares or Class A Common Shares who shall have been a record holder
of such shares as of the date fixed for the determination of shareholders
entitled to notice of the Annual Meeting and who shall have delivered to
Lincoln, not later then ten days after the date on which the vote on this
Agreement was taken at the Annual Meeting, a written demand for payment to such
holder of the fair cash value of such shares in compliance with Ohio Revised
Code Section 1701.85, and whose such shares shall not have been voted in favor
of adoption of this Agreement, shall cease to have any of the rights of a
shareholder in respect of such shares except the right to be paid the fair cash
value of such shares and any other rights bestowed under Ohio Revised Code
Sections 1701.84 and 1701.85. However, any such shareholder who shall validly
withdraw such shareholder's written demand for payment of the fair cash value of
such shares pursuant to Ohio Revised Code Sections 1701.84 and 1701.85 will
thereupon be reinstated to all such shareholder's rights as a shareholder in
respect of such shares as of the date of delivery of such shareholder's written
demand to Lincoln, subject to the provisions of Section 3.1 of this Agreement,
and will be entitled to receive the Holding Common Shares into which such
shareholder's Common Shares and Class A Common Shares were converted as of the
Effective Time pursuant hereto.
3.4 TRANSFERS. The stock transfer books of Lincoln shall be
closed at the close of business on the business day immediately preceding the
Effective Time and the holders of record of Common Shares and Class A Common
Shares as of the Effective Time shall be the shareholders entitled to conversion
of their Common Shares and Class A Common Shares into Holding Common Shares as
provided in this Agreement. In the event of a transfer of ownership of any such
Common Shares or Class A Common Shares which transfer is not registered in the
stock transfer records of Lincoln, the Holding Common Shares may be issued to a
transferee if the certificate representing such Common Shares or Class A Common
Shares is accompanied upon surrender by all documents required to evidence and
effect such transfer and payment of any applicable stock transfer taxes.
ARTICLE IV
CERTAIN AGREEMENTS
4.1 REGISTRATION OF HOLDING COMPANY SHARES. At or prior to the
Effective Time, Holding Company shall register under the Securities Act of 1933,
as amended, the maximum number of Holding Common Shares required to be exchanged
for Common Shares and Class A Common Shares, respectively, pursuant to this
Agreement.
4.2 STOCK PLANS. At or prior to the Effective Time, Holding
Company shall assume Lincoln's 1988 Incentive Equity Plan (the "IEP") and, if
then established, 1998 Stock Option Plan (together with the IEP, the "STOCK
PLANS") with amendments thereto as deemed appropriate by the respective Boards
of Directors of Lincoln and Holding Company, including all obligations
associated with any valid options ("OPTIONS") to purchase or right to receive
under restricted stock awards Common Shares or Class A Common Shares under the
Stock Plans. Thereafter, each such Option to purchase Common Shares shall be the
valid and enforceable option to purchase twice such number of Holding Common
Shares (instead of Common Shares) at a purchase price per Holding Common Share
equal to one-half the
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purchase price per Common Share. In addition, thereafter each such Option to
purchase Class A Common Shares shall be the valid and enforceable option to
purchase twice such number of Holding Common Shares (instead of Class A Common
Shares) at a purchase price per Holding Common Share equal to one-half the
purchase price per Class A Common Share. Except as set forth above, each such
Option shall be on the same terms and conditions and have the same provisions
which are contained therein immediately prior to the Effective Time.
4.3 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS AND 1995
LINCOLN STOCK PURCHASE PLAN. At the Effective Time, Holding Company shall take
or cause to be taken all actions necessary or advisable to assume each of
Lincoln's Non-Employee Directors' Restricted Stock Plan and 1995 Lincoln Stock
Purchase Plan and all obligations of Lincoln with respect thereto, and all
rights to receive Common Shares or Class A Common Shares thereunder shall become
rights to receive Holding Common Shares.
4.4 ELECTION OF DIRECTORS. The sole shareholder of Holding
Company, shall, subsequent to the adoption and approval of this Agreement as
provided in Section 6.1, but prior to the Effective Time, duly convene a meeting
of the sole shareholder of Holding Company (or act by written consent of such
shareholder in lieu of a meeting) and shall take or cause to be taken all action
necessary, in accordance with the Regulations of Holding Company and the Ohio
Revised Code, to install as Directors of Holding Company, who shall serve until
the next annual meeting of shareholders of Holding Company or until their
respective successors have been elected and qualified, all persons who are named
as directors and as nominees for director of Lincoln in the proxy statement used
by the directors of Lincoln to solicit proxies for use at the 1998 Annual
Meeting of shareholders.
4.5 SETTLEMENT OPTIONS. At the Effective Time, Holding Company
shall take or cause to be taken all actions necessary or advisable to assume all
obligations of Lincoln to issue Class A Common Shares under that certain
settlement dated April, 1996 concerning awards under Lincoln's IEP and the
option agreements related to such settlement. Thereafter, each such option to
purchase Class A Common Shares shall be the valid and enforceable option to
purchase twice such number of Holding Common Shares (instead of Class A Common
Shares) at a purchase price per Holding Common Share equal to one-half the
purchase price per Class A Common Share.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 MERGER CO. Merger Co. represents and warrants to
Lincoln and to Holding Company as follows:
(a) Merger Co. is a corporation duly formed, validly
existing and in good standing under the laws of the
State of Ohio. Merger Co. has the corporate power and
authority to execute, deliver and carry out the terms
and provisions of this Agreement and has taken all
necessary corporate action to authorize the
execution, delivery and performance of this
Agreement. Merger Co. has duly authorized, executed
and delivered this Agreement and this Agreement
constitutes the legal, valid and binding agreement of
Merger Co., enforceable in accordance with its terms.
(b) Merger Co. does not own any property or assets and
does not conduct any business.
(c) The entire authorized capital stock of Merger Co.
consists of 100 shares of common stock, with no par
value per share. As of the date of this Agreement and
as of the Effective Time, (i) 100 common shares of
Merger Co. are and will be issued and outstanding,
all of which shares are owned of record by Holding
Company, and (ii) no common shares of Merger Co.
are or will be held in treasury.
5.2 HOLDING COMPANY. Holding Company represents and
warrants to Lincoln and to Merger Co. as follows:
(a) Holding Company is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Ohio. Holding Company has the
corporate power and authority
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to execute, deliver and carry out the terms and
provisions of this Agreement and has taken all
necessary corporate action to authorize the
execution, delivery and performance of this
Agreement. Holding Company has duly authorized,
executed and delivered this Agreement and this
Agreement constitutes the legal, valid and binding
agreement of Holding Company, enforceable in
accordance with its terms.
(b) Holding Company does not own any property or assets
other than the common shares of Merger Co. and does
not conduct any business.
(c) Holding Company is the sole beneficial owner of 100
common shares of Merger Co.
(d) The entire authorized capital stock of Holding
Company is 120,000,000 Holding Common Shares and
5,000,000 Preferred Shares. As of the date of this
Agreement, and as of immediately prior to the
Effective Time, (i) ten Holding Common Shares and no
Preferred Shares are or will be outstanding and (ii)
no Holding Common Shares and no Preferred Shares are
held in treasury.
5.3 LINCOLN. Lincoln represents and warrants to Holding
Company and to Merger Co. as follows:
Lincoln has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this
Agreement and has taken all necessary corporate action to
authorize the execution, delivery and performance of this
Agreement. Lincoln has duly authorized, executed and delivered
this Agreement and this Agreement constitutes the legal, valid
and binding agreement of Lincoln, enforceable in accordance
with its terms.
ARTICLE VI
CONDITIONS TO MERGER
The consummation of the Merger is subject to the satisfaction,
in the sole judgment of the Board of Directors of Lincoln, of the following
conditions prior to the Effective Time:
6.1 SHAREHOLDER APPROVAL. This Agreement shall have received
the approval of two-thirds of the issued and outstanding Common Shares and
two-thirds of the issued and outstanding Class A Common Shares entitled to vote.
6.2 PERFORMANCE OF AGREEMENTS. Merger Co. and Holding Company
shall have performed all their respective obligations and agreements required by
this Agreement to be performed by them at or prior to the Effective Time.
6.3 TAX MATTERS. Lincoln shall have received an opinion of
Jones, Day, Reavis & Pogue, satisfactory in form and substance to Lincoln, as to
such matters relating to the tax consequences of the transactions contemplated
by this Agreement as the Board of Directors of Lincoln may deem advisable
including, without limitation, an opinion of such counsel to the effect that the
Merger constitutes a "reorganization" within the meaning of Section 368(a)(1)(B)
of the Internal Revenue Code.
6.4 OPINION OF COUNSEL. Lincoln shall have received an opinion
of Jones, Day, Reavis & Pogue, satisfactory in form and substance to Lincoln, to
the effect that:
(a) each of Merger Co. and Holding Company is a
corporation duly formed, validly existing and in good standing
under the laws of the State of Ohio;
(b) Lincoln is a corporation validly existing and in
good standing under the laws of the State of Ohio;
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(c) this Agreement has been duly authorized, executed
and delivered by, and is a valid and binding agreement or
obligation of, each of Lincoln, Merger Co. and Holding
Company;
(d) neither the execution and delivery of this
Agreement nor the performance by Lincoln, Merger Co., or
Holding Company, respectively, of any of its obligations
hereunder will conflict with such company's articles of
incorporation or code of regulations;
(e) the Holding Common Shares required to be issued
and delivered by Holding Company upon the Merger are duly
authorized and will, when issued as contemplated in this
Agreement, be validly issued, fully paid and nonassessable.
6.5 DISSENTING SHARES. Lincoln shall not have received notice
from the holder or holders of more than 10% of the outstanding Common Shares and
Class A Common Shares, in the aggregate, that such holder or holders have
exercised or intend to exercise its or their dissenters' rights under Section
1701.85 of the Ohio Revised Code and the time for the holders of Common Shares
and Class A Common Shares to give such notice shall have expired.
6.6 MISCELLANEOUS APPROVALS. Lincoln, Merger Co. and Holding
Company, as appropriate, shall have received all orders, consents and approvals,
governmental or otherwise, which in the opinion of Lincoln, are required by law
or advisable to the consummation of the Merger, except for filings in connection
with the Merger and any other documents required to be filed after the Effective
Time.
6.7 NO PROHIBITION. None of Lincoln, Merger Co. or Holding
Company shall be subject to any order or injunction of a court of competent
jurisdiction that prohibits the consummation of the transactions contemplated by
this Agreement or that would make the consummation of the Merger by Lincoln,
Merger Co. or Holding Company illegal.
6.8 STEPS TO EFFECT MERGER. Upon the satisfaction or waiver by
Lincoln of each of the conditions set forth in this Article VI, the officers of
each of Lincoln, Merger Co. and Holding Company shall take all steps necessary
in order to make effective the Merger as provided herein.
ARTICLE VII
MISCELLANEOUS
7.1 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
7.2 HEADINGS. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement. When a
reference is made in this Agreement to a section, such reference shall be to a
section of this Agreement unless otherwise indicated.
7.3 COMPLETE AGREEMENT. This Agreement contains the complete
agreement among the parties hereto with respect to the Merger and supersedes all
prior agreements and understandings with respect to the Merger.
7.4 BINDING EFFECTS; BENEFITS. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns; provided however, that nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
7.5 GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Ohio, without giving
effect to principles of conflicts of laws.
7.6 AMENDMENT, DEFERRAL AND ABANDONMENT. (a) The parties
hereto, by mutual consent of their respective Boards of Directors, may amend,
modify or supplement this Agreement in writing at any time prior or subsequent
to the adoption and approval of the Agreement by the shareholders of Lincoln and
prior to the Effective Time; provided, however, that no such amendment,
modification or supplement shall affect the rights of the respective
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shareholders of the parties hereto in a manner which is materially adverse to
such shareholders in the judgment of the respective Boards of Directors of the
parties hereto.
(b) Notwithstanding the adoption and approval of this
Agreement by the shareholders of Lincoln, Holding Company or Merger Co.,
consummation of the transactions provided for herein may be deferred by the
Board of Directors of Lincoln at any time prior to the Effective Time, if such
Board of Directors determines that such deferral would be in the best interests
of Lincoln or its shareholders.
(c) Notwithstanding the adoption and approval of this
Agreement by the shareholders of Lincoln, this Agreement may be terminated, and
the Merger and other transactions provided for herein may be abandoned, by the
Board of Directors of Lincoln at any time prior to the Effective Time if such
Board of Directors determines that such abandonment would be in the best
interests of Lincoln or its shareholders. In such event, this Agreement shall
forthwith be wholly void and of no effect and there shall be no liability with
respect to this Agreement on the part of any party hereto or any of their
respective directors, officers, employees or shareholders.
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IN WITNESS WHEREOF, each of Merger Co., Lincoln and Holding
Company have caused this Agreement to be duly executed by its duly authorized
officer as of the day and year first above written.
LINCOLN ELECTRIC MERGER CO.
By: /s/ FREDERICK G. STUEBER
--------------------------------------
Name: Frederick G. Stueber
Title: Senior Vice President, General
Counsel and Secretary
THE LINCOLN ELECTRIC COMPANY
By: /s/ ANTHONY A. MASSARO
--------------------------------------
Name: Anthony A. Massaro
Title: Chairman, President and
Chief Executive Officer
LINCOLN ELECTRIC HOLDINGS, INC.
By: /s/ ANTHONY A. MASSARO
--------------------------------------
Name: Anthony A. Massaro
Title: Chairman, President and
Chief Executive Officer
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EXHIBIT A
THE LINCOLN ELECTRIC COMPANY
THIRD RESTATED ARTICLES OF INCORPORATION
FIRST: The name of the Corporation shall be The Lincoln
Electric Company.
SECOND: The principal office of the Corporation in the State
of Ohio is to be located in the City of Cleveland, County of Cuyahoga.
THIRD: The purpose for which the Corporation is formed is to
engage in any lawful act or activity for which corporations may be formed under
Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The number of shares which the Corporation is
authorized to have outstanding is 100 shares of Common Stock, without par value.
FIFTH: The Corporation will commence business without any
allocation to stated capital.
SIXTH: No holders of any class of shares of the Corporation
shall have any pre-emptive right to purchase or have offered to them for
purchase any shares or other securities of the Corporation.
SEVENTH: The holders of shares of the Corporation shall not be
entitled to cumulative voting rights in the election of Directors.
EIGHTH: The Corporation may from time to time, pursuant to
authorization by the 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 Directors shall determine;
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.
NINTH: Any and every statute of the State of Ohio hereafter
enacted, whereby the rights, powers or privileges of corporations or of the
shareholders of corporations organized under the laws of the State of Ohio are
increased or diminished or in any way affected, or whereby effect is given to
the action taken by any number, less than all, of the shareholders of any such
corporation, shall apply to the Corporation and shall be binding not only upon
the Corporation but upon every shareholder of the Corporation to the same extent
as if such statute had been in force at the date of filing these Articles of
Incorporation of the Corporation in the office of the Secretary of State of
Ohio.
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EXHIBIT B
THE LINCOLN ELECTRIC COMPANY
THIRD RESTATED CODE OF REGULATIONS
ARTICLE I
SHAREHOLDERS' MEETINGS
Section 1. Annual Meeting.
The annual meeting of shareholders shall be held at such date, time and
place as may be designated from time to time by the Board of Directors for the
election of Directors and the consideration of reports to be laid before such
meeting. Upon due notice, there may also be considered and acted upon at an
annual meeting any matter which could 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 the annual meeting
is not held or Directors are not elected thereat, they may be elected at a
special meeting called for that purpose.
Section 2. Special Meetings.
Special meetings of shareholders may be called by (i) the Chairman of
the Board or the President or a Vice President, (ii) the Directors by action at
a meeting, or by a majority of the Directors acting without a meeting, or (iii)
the person or persons who hold not less than 50 percent of all shares
outstanding and entitled to be voted at said meeting.
Upon request in writing delivered either in person or by registered
mail to the President or Secretary by any person or persons entitled to call a
meeting of shareholders, such officer shall forthwith cause to be given, to the
shareholders entitled thereto, notice of a meeting to be held not less than
seven nor more than 60 days after the receipt of such request, as such officer
shall fix. If such notice is not given within 20 days after the delivery or
mailing of such request, the person or persons calling the meeting may fix the
time of the meeting and give, or cause to be given, notice in the manner
hereinafter provided.
Section 3. Place of Meetings.
Any meeting of shareholders may be held either at the principal office
of the Corporation or at such other place within or without the State of Ohio as
may be designated in the notice of said meeting.
Section 4. Notice of Meetings.
Not more than 60 days nor less than seven days before the date fixed
for a meeting of shareholders, whether annual or special, written notice of the
time, place and purposes of such meeting shall be given by or at the direction
of the President, a Vice President, the Secretary or an Assistant Secretary.
Such notice shall be given either by personal delivery or by mail to each
shareholder of record entitled to notice of such meeting. If such notice is
mailed, it shall be addressed to the shareholders at their respective addresses
as they appear on the records of the Corporation, and notice shall be deemed to
have been given on the day so mailed. Notice of adjournment of a meeting need
not be given if the time and place to which it is adjourned are fixed and
announced at such meeting.
Section 5. Shareholders Entitled to Notice and to Vote.
If a record date shall not be fixed pursuant to statutory authority,
the record date for the determination of shareholders who are entitled to notice
of, or who are entitled to vote at, a meeting of shareholders, shall be the
close of business on the date next preceding the day on which notice is given,
or the close of business on the date next preceding the day on which the meeting
is held, as the case may be.
<PAGE> 11
Section 6. Inspectors of Election; List of Shareholders.
Inspectors of election may be appointed to act at any meeting of
shareholders in accordance with the Ohio General Corporation Law.
At any meeting of shareholders, an alphabetically arranged list, or
classified lists, of the shareholders of record as of the applicable record date
who are entitled to vote, showing their respective addresses and the number and
classes of shares held by each, shall be produced on the request of any
shareholder.
Section 7. Quorum.
To constitute a quorum at any meeting of shareholders, there shall be
present in person or by proxy shareholders of record entitled to exercise not
less than a majority of the voting power of the Corporation in respect of any
one of the purposes for which the meeting is called.
The holders of a majority of the voting power represented in person or
by proxy at a meeting of shareholders, whether or not a quorum be present, may
adjourn the meeting from time to time.
Section 8. Voting.
In all cases, except as otherwise expressly required by statute, the
Articles of Incorporation of the Corporation or these Regulations, a majority of
the votes cast at a meeting of shareholders shall control. An abstention shall
not represent a vote cast.
Section 9. Reports to Shareholders.
At the annual meeting, or the meeting held in lieu thereof, the
officers of the Corporation shall lay before the shareholders a financial
statement as required by the Ohio General Corporation Law.
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<PAGE> 12
Section 10. Action Without a Meeting.
Except as otherwise provided in these Regulations, any action which may
be authorized or taken at a meeting of the shareholders may be authorized or
taken without a meeting with the affirmative vote or approval of, and in a
writing or writings signed by, all of the shareholders who would be entitled to
notice of a meeting for such purpose, which writing or writings shall be filed
with or entered upon the records of the Corporation.
Section 11. Chairman of Meeting.
The chairman of any meeting of shareholders shall be the Chairman of
the Board or, if the Directors have not elected a Chairman of the Board, the
President of the Corporation. The Chairman of the Board or, if the Directors
have not elected a Chairman of the Board or the Chairman of the Board is
unavailable to do so, the President may appoint any other officer of the
Corporation to act as chairman of any shareholders' meeting. Notwithstanding the
foregoing, the Directors may appoint any individual to act as chairman of any
shareholders' meeting.
ARTICLE II
DIRECTORS
Section 1. Election, Number and Term of Office.
The Directors shall be elected at the annual meeting of shareholders,
or if not so elected, at a special meeting of shareholders called for that
purpose, and each Director shall hold office until the date fixed by these
Regulations for the next succeeding annual meeting of shareholders and until his
successor is elected, or until his earlier resignation, removal from office or
death. At any meeting of shareholders at which Directors are to be elected, only
persons nominated as candidates shall be eligible for election.
The number of Directors, which shall not be less than three (unless all
of the shares of the Corporation are owned of record by one or two shareholders,
in which case the number of Directors may be less than three but not less than
the number of shareholders), may be fixed or changed 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
represented at the meeting and entitled to vote on such proposal. In case the
shareholders at any meeting for the election of Directors shall fail to fix the
number of Directors to be elected, the number elected shall be deemed to be the
number of Directors so fixed.
Section 2. Meetings.
Regular meetings of the Directors shall be held immediately after the
annual meeting of shareholders and at such other times and places as may be
fixed by the Directors, and such meetings may be held without further notice.
Special meetings of the Directors may be called by the Chairman of the
Board or by the President or by a Vice President or by the Secretary of the
Corporation, or by not less than one-third of the Directors. Notice of the time
and place of a special meeting shall be served upon or telephoned to each
Director at least 24 hours, or mailed, telegraphed or cabled to each Director at
least 48 hours, prior to the time of the meeting.
Section 3. Quorum and Voting.
A majority of the number of Directors then in office (but in no event
more than a majority of Directors then in office) shall be necessary to
constitute a quorum for the transaction of business, but if at any meeting of
the Directors there shall be less than a quorum present, a majority of those
present may adjourn the meeting from time to time without notice other than
announcement at the meeting until a quorum shall attend. In all cases, except as
otherwise expressly required by statute, the Articles of Incorporation of the
Corporation or these Regulations, the act of a majority of the Directors present
at a meeting at which a quorum is present is the act of the Directors.
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Section 4. Action Without a Meeting.
Any action which may be authorized or taken at a meeting of the
Directors may be authorized or taken without a meeting with the affirmative vote
or approval of, and in a writing or writings signed by, all of the Directors,
which writing or writings shall be filed with or entered upon the records of the
Corporation.
Section 5. Committees.
The Directors may from time to time create a committee or committees of
Directors to act in the intervals between meetings of the Directors and may
delegate to such committee or committees any of the authority of the Directors
other than that of filling vacancies among the Directors or in any committee of
the Directors. No committee shall consist of less than three Directors. The
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 any meeting
of such committee.
In particular, the Directors may create and define the powers and
duties of an Executive 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.
Unless otherwise ordered by the Directors, a majority of the members of
any committee appointed by the Directors pursuant to this section 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 Directors, and shall keep a
written record of all action taken by it.
ARTICLE III
OFFICERS
Section 1. Officers.
The Corporation may have a Chairman of the Board (who shall be a
Director) and shall have a President, a Secretary and a Treasurer. The
Corporation may also have one or more Vice Presidents and such other officers
and assistant officers as the Directors may deem necessary. All of the officers
and assistant officers shall be elected by the Directors.
Section 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 Directors, regardless of whether
such authority and duties are customarily incident to such office.
ARTICLE IV
INDEMNIFICATION AND INSURANCE
Section 1. Indemnification.
The Corporation shall indemnify, to the full extent then permitted by
law, 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 member of the Board of Directors or an 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,
partnership, joint venture, trust or other enterprise. The Corporation shall
pay, to the full extent then required by law, expenses, including attorney's
fees, incurred by a member
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<PAGE> 14
of the Board of Directors in defending any such action, suit or proceeding as
they are incurred, in advance of the final disposition thereof, and may pay, in
the same manner and to the full extent then permitted by law, such expenses
incurred by any other person. The indemnification and payment of expenses
provided hereby shall not be exclusive of, and shall be in addition to, any
other rights granted to those seeking indemnification under any law, the
Articles of Incorporation, any agreement, vote of shareholders or disinterested
members of the Board of Directors, or otherwise, both as to action in official
capacities and as to action in another capacity while he is a member of the
Board of Directors, officer, employee or agent of the Corporation, and shall
continue as to a person who has ceased to be a member of the Board of Directors,
trustee, officer, employee or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 2. Insurance.
The Corporation may, to the full extent then permitted by law and
authorized by the Directors, 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 persons described in Section 1 against
any liability asserted against and incurred by any such person in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify such person against such liability. Insurance
may be purchased from or maintained with a person in which the Corporation has a
financial interest.
Section 3. Agreements.
The Corporation, upon approval by the Board of Directors, may enter
into agreements with any persons whom the Corporation may indemnify under these
Regulations or under law and undertake thereby to indemnify such persons and to
pay the expenses incurred by them in defending any action, suit or proceeding
against them, whether or not the Corporation would have the power under these
Regulations or law to indemnify any such person.
ARTICLE V
MISCELLANEOUS
Section 1. Transfer and Registration of Certificates.
The Directors shall have authority to make such rules and regulations
as they deem expedient concerning the issuance, transfer and registration of
certificates for shares and the shares represented thereby and may appoint
transfer agents and registrars thereof.
Section 2. Substituted Certificates.
Any person claiming a certificate for shares to have been lost, stolen
or destroyed shall make an affidavit or affirmation of that fact, shall give the
Corporation and its registrar or registrars and its transfer agent or agents a
bond of indemnity satisfactory to the Directors or to the Executive Committee or
to the President or a Vice President and the Secretary or the Treasurer, and, if
required by the Directors or the Executive Committee or such officers, shall
advertise the same in such manner as may be required, whereupon a new
certificate may be executed and delivered of the same tenor and for the same
number of shares as the one alleged to have been lost, stolen or destroyed.
Section 3. Voting of Shares Held by the Corporation.
Unless otherwise ordered by the Directors, any officer or assistant
officer of the Corporation, in person or by proxy or proxies appointed by him,
shall have full power and authority on behalf of the Corporation to vote, act
and consent with respect to any shares issued by other corporations which the
Corporation may own.
Section 4. Amendments.
These Regulations may be amended by the affirmative vote or the written
consent of the shareholders of record entitled to exercise a majority of the
voting power on such proposal; provided, however, that if an amendment is
adopted by written consent without a meeting of the shareholders, the Secretary
shall mail a copy of such amendment to each shareholder of record who would have
been entitled to vote thereon and did not participate in the adoption thereof.
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<PAGE> 1
Exhibit 3(a)
LINCOLN ELECTRIC HOLDINGS, INC.
RESTATED ARTICLES OF INCORPORATION
ARTICLE FIRST: The name of the Corporation shall be LINCOLN
ELECTRIC HOLDINGS, INC.
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 purpose for which the Corporation is formed
is to engage in any lawful act or activity for which corporations may be formed
under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
ARTICLE FOURTH: Section 1. The maximum number of shares which
the Corporation is authorized to have outstanding is one hundred twenty-five
million (125,000,000), consisting of one hundred twenty million (120,000,000)
Common Shares, without par value ("Common Shares") and 5,000,000 Preferred
Shares, without par value ("Preferred Shares"). The Common Shares and the
Preferred Shares shall have the express terms set forth in this Article Fourth.
Section 2. Voting. Each shareholder of the Corporation shall
be entitled to one vote for each Common Share and each Preferred Share standing
in such shareholder's name on the books of the Corporation.
Section 3. Dividends. Dividends may be declared and paid to
the holders of Common Shares and Preferred 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.
Section 4. 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 5. Preferred Shares. The Preferred Shares may be
issued from time to time in series. Each Preferred Share of any one series shall
be identical with each other share of the same series in all respects, except as
to the date from which dividends thereon shall be cumulative. All Preferred
Shares of all series shall rank equally and shall be identical, except that
there may be variations in respect of the dividend rate, the dates of payment of
dividends and the dates from which they are cumulative, redemption rights and
price, sinking fund requirements, conversion rights, liquidation price, and
restrictions on the issuance of shares of the same series or of any other class
or series. Subject to the requirements that all Preferred Shares shall be
identical in respect of rights of alteration of express terms, the Board of
Directors, without any further action by the shareholders, may, at any time and
from time to time, adopt an amendment or amendments to these Restated Articles
of Incorporation, or adopt further Restated Articles of Incorporation, in
respect of any Preferred Shares that constitute unissued or treasury shares at
the time of such adoption for the purpose of dividing any or all of such
Preferred Shares into such series as the Board of Directors shall determine and
fix the express terms of any such series of Preferred Shares, which may include
statements specifying:
A. dividend rights, which may be cumulative or non-cumulative, at
a specified rate, amount or proportion, with or without
further participation rights, and in preference to, junior to,
or on a parity in whole or in part with dividend rights of
shares of any other class or series;
B. redemption rights and price;
C. sinking fund requirements, which may require the Corporation
to provide a sinking fund out of earnings or otherwise for the
purchase or redemption of such shares or for dividends
thereon;
D. conversion rights;
<PAGE> 2
E. liquidation rights, preferences and price; and
F. restrictions on the issuance of shares of any class or series
of the Corporation.
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 Shares
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 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
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<PAGE> 3
(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 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 Shares 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 the Common Shares of
the Corporation or of any of the classes or series of capital stock of the
Corporation entitled to a preference over the Common Shares 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 Shares in exchange for
their Common Shares, 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 cash to be received per
share by holders of Common Shares 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 Shares 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 Common Share
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 Common
Share determined pursuant to clause (b)
immediately preceding, multiplied by the
ratio of (x) the highest per share price
(including any brokerage commissions,
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<PAGE> 4
transfer taxes and soliciting dealers' fees)
paid in order to acquire any Common 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 Common Share on the first day in
such two-year period on which the Interested
Shareholder beneficially owned any Common
Shares, 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 Shares, 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 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.
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<PAGE> 5
(3) The consideration to be received by holders of a
particular class of Voting Shares or Common Shares
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 Shares or other
capital stock entitled to a preference over
the Common Shares 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 Shares
(except as necessary to reflect any
subdivision of the Common Shares) 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 Common Shares;
(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
(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 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
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<PAGE> 6
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.
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
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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
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.
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 Common Shares 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 Shares
as to dividends or upon liquidation, or the terms of any other securities of the
Corporation (and notwithstanding the fact that a lesser 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 the existing Articles of Incorporation.
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Exhibit 3(b)
L I N C O L N E L E C T R I C H O L D I N G S, I N C.
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.
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.
<PAGE> 2
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. ANNUAL MEETING. The Annual Meeting of shareholders shall be held at
such date, time and place as may be designated from time to time by the
Board of Directors, 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.
2. SPECIAL MEETINGS. Special meetings of the shareholders may be called by
the President, or an Executive or Senior 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 or entered upon the records of the meeting, either
before or after the holding thereof.
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4. 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.
5. 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.
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
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their successors, and Directors elected at the 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 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. Special meetings of
the Board of Directors may be called by the Chairman of the Board of
Directors or the President on one day's notice to each Director by whom
such notice is not waived, given either personally or by mail,
telephone, telegram, telex, facsimile or similar medium of
communication, and will be called by the Chairman of the Board of
Directors or the President, in like manner and on like notice, on the
written request of not less than one-third of the Board of Directors. 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.
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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 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 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,
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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 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.
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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 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
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
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.
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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 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.
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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.
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