<PAGE> -15-
EXHIBIT 3.1
RESTATED AND AMENDED CHARTER
OF
LOWE'S COMPANIES, INC.
The undersigned Corporation, pursuant to action by its
shareholders, hereby executes this Restated and Amended Charter
for the purpose of integrating into one document its original
articles of incorporation and all amendments thereto:
1. Name. The name of the Corporation is Lowe's Companies,
Inc.
2. Duration. The period of duration of the Corporation is
perpetual.
3. Purpose. The purpose for which the Corporation is
organized is to engage in any lawful act or activity for which
corporations may be organized under the Business Corporation Act
of North Carolina.
4. Authorized Stock. The Corporation shall have the
authority to issue 5,000,000 shares of Preferred Stock of a par
value of $5 per share and 120,000,000 shares of Common Stock of a
par value of $.50 per share.
Preferred Stock. Authority is expressly vested in the Board
of Directors to divide the Preferred Stock into series and,
within the following limitations, to fix and determine the
relative rights and preferences as between series so established
and to provide for the issuance thereof. Each series shall be so
designated as to distinguish the shares thereof from the shares
of all other series and classes. All shares of Preferred Stock
shall be identical except as to the following relative rights and
preferences, as to which there may be variations between
different series:
(1) The rate of dividend;
(2) The price at and the terms and conditions on which
shares may be redeemed;
(3) The amount payable upon shares in event of
involuntary liquidation;
(4) The amount payable upon shares in event of
voluntary liquidation;
(5) Sinking fund provisions for the redemption or
purchase of shares;
(6) The terms and conditions on which shares may be
converted if the shares of any series are issued with the
privilege of conversion; and
(7) The terms and conditions on which shares may be
voted in the election of Directors or otherwise, either as a
class or together with other voting securities.
<PAGE> -16-
Prior to the issuance of any shares of a series of Preferred
Stock the Board of Directors shall establish such series by
adopting a resolution setting forth the designation of the series
and the preferences, limitations and relative rights thereof to
the extent that variations are permitted by the provisions
hereof.
All series of Preferred Stock shall rank on a parity as to
dividends and assets with all other series according to the
respective dividend rates and amounts distributable upon any
voluntary or involuntary liquidation of the Corporation fixed for
each such series; but all shares of Preferred Stock shall be
preferred over Common Stock as to both dividends and amounts
distributable upon any voluntary or involuntary liquidation of
the Corporation. All shares of any one series shall be
identical.
Common Stock. The holders of Common Stock shall, to the
exclusion of the holders of any other class of stock of the
Corporation, have the sole and full power to vote for the
election of Directors and for all other purposes without
limitation except only (i) as otherwise provided in the
resolutions establishing and designating a particular series of
Preferred Stock and (ii) as otherwise expressly provided by the
then existing statutes of the State of North Carolina. The
holders of Common Stock shall have one vote for each share of
Common Stock held by them.
Subject to the provisions of resolutions establishing and
designating series of Preferred Stock, the holders of shares of
Common Stock shall be entitled to receive dividends if, when and
as declared by the Board of Directors out of funds legally
available therefor and to the net assets remaining after payment
of all liabilities upon voluntary or involuntary liquidation of
the Corporation.
5. Stated Capital. The stated capital of the Corporation
is $18,550,694 as of April 4, 1986, being the date that the Board
of Directors adopted a resolution setting forth this Restated and
Amended Charter for submission to the shareholders for approval.
6. Shareholders' Preemptive Right. No holder of stock of
the Corporation shall have any preemptive right to subscribe for
or purchase any additional or increased stock of the Corporation
of any class, whether now or hereafter authorized, including
treasury stock, or obligations convertible into any class of
stock, or stock of any class convertible into stock of any other
class, or obligations, stock or other securities carrying
warrants or rights to subscribe to stock of the Corporation of
any class, whether now or hereafter authorized, but any and all
shares of stock, bonds, debentures or other securities or
obligations, whether or not convertible into stock or carrying
warrants entitling the holders thereof to subscribe to stock, may
be issued, sold or disposed of from time to time by authority of
the Board of Directors to such persons, firms, corporations or
employee stock ownership plans and for such consideration, as far
as it may be permitted by law, as the Board of Directors shall
from time to time determine.
7. Registered Office. The address of the registered
<PAGE> -17-
office of the Corporation in the State of North Carolina is Elkin
Highway, Wilkes County, North Wilkesboro, North Carolina 28659;
and the name of its registered agent at such address is L. G.
Herring.
8. Incorporators. The names and addresses of the original
incorporators of the Corporation are as follows:
NAME ADDRESS
H. C. Buchan, Jr. North Wilkesboro, N.C.
Ruth Lowe Buchan North Wilkesboro, N.C.
Hal E. Church North Wilkesboro, N.C.
9. Board of Directors.
(a) Number, Election & Term of Directors. The number
of Directors shall be set forth in the Bylaws, but in the absence
of such a provision in the Bylaws, the number of Directors of the
Corporation shall be nine, provided that the number of Directors
set forth in the Bylaws cannot be increased by more than two
during any 12 month period except by the affirmative vote of the
holders of at least 70% of the outstanding Voting Shares.
Commencing with the 1986 Annual Meeting of Shareholders, the
Board of Directors shall be divided into three classes, Class I,
Class II and Class III, as nearly equal in number as possible.
At the 1986 Annual Meeting of Shareholders, Directors of the
first class (Class I) shall be elected to hold office for a term
expiring at the 1987 Annual Meeting of Shareholders; Directors of
the second class (Class II) shall be elected to hold office for a
term expiring at the 1988 Annual Meeting of Shareholders; and
Directors of the third class (Class III) shall be elected to hold
office for a term expiring at the 1989 Annual Meeting of
Shareholders. At each Annual Meeting of Shareholders after 1986,
the successors to the class of Directors whose term shall then
expire shall be identified as being of the same class as the
Directors they succeed and elected to hold office for a term
expiring at the third succeeding Annual Meeting of Shareholders.
When the number of Directors is changed, any newly-created
directorships or any decrease in directorships shall be so
apportioned among the classes by the Board of Directors as to
make all classes as nearly equal in number as possible.
(b) Newly-Created Directorships and Vacancies.
Subject to the rights of the holders of Preferred Stock then
outstanding, any vacancy occurring in the Board of Directors,
including a vacancy resulting from an increase by not more than
two in the number of Directors, may be filled by the affirmative
vote of a majority of the remaining Directors though less than a
quorum of the Board of Directors, and Directors so chosen shall
hold office for a term expiring at the Annual Meeting of
Shareholders at which the term of the class to which they have
been elected expires. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any
incumbent Director.
(c) Removal of Directors. Subject to the rights of
the holders of Preferred Stock then outstanding, any Director may
<PAGE> -18-
be removed, with or without cause, only by the affirmative vote
of the holders of at least 70% of the outstanding Voting Shares.
(d) Amendment or Repeal. The provisions of this
Article shall not be amended or repealed, nor shall any provision
of this Charter be adopted that is inconsistent with this
Article, unless such action shall have been approved by the
affirmative vote of either:
(i) the holders of at least 70% of the
outstanding Voting Shares; or
(ii) a majority of those Directors who are
Disinterested Directors and the holders of the
requisite number of shares specified under applicable
North Carolina law for the amendment of the charter of
a North Carolina corporation.
(e) Certain Definitions. For purposes of this
Article:
(i) "Disinterested Director" means any member of
the Board of Directors who:
(A) was elected to the Board of Directors at
the 1986 Annual Meeting of Shareholders; or
(B) was recommended for election by a
majority of the Disinterested Directors then on
the Board, or was elected by the Board to fill a
vacancy and received the affirmative vote of a
majority of the Disinterested Directors then on
the Board.
(ii) "Voting Shares" shall mean the outstanding
shares of all classes or series of the Corporation's
stock entitled to vote generally in the election of
Directors.
10. (a) Vote Required for Certain Business Combinations.
(i) Higher Vote for Certain Business
Combinations. In addition to any affirmative vote
required by law or this Charter, and except as
otherwise expressly provided in Section (b) of this
Article:
(A) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter
defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other Corporation
which immediately before such merger or
consolidation is an Affiliate or Associate (as
hereinafter defined) of an Interested Stockholder;
or
(B) any statutory share exchange in which
any Interested Stockholder or any Affiliate or
Associate of an Interested Stockholder acquires
the issued and outstanding shares of any class of
<PAGE> -19-
Capital Stock of the Corporation or a Subsidiary;
or
(C) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of transactions during any
12 month period) to or with any Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate
Fair Market Value (as hereinafter defined) in
excess of 5% of the Corporation's consolidated
assets as of the date of the most recently
available financial statements; or any guaranty by
the Corporation or any Subsidiary (in one
transaction or a series of transactions during any
12 month period) of indebtedness of any Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder in excess of 5% of the
Corporation's consolidated assets as of the date
of the most recently available financial
statements; or any transaction or series of
transactions involving in excess of 5% of the
Corporation's consolidated assets as of the date
of the most recently available financial
statements to which the Corporation or any
Subsidiary and any Interested Stockholder or any
Affiliate or Associate of any Interested
Stockholder is a party; or
(D) the sale or other disposition by the
Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder (in one transaction or a
series of transactions during any 12 month period)
of any securities of the Corporation or any
Subsidiary having an aggregate Fair Market Value
in excess of 5% of the aggregate Fair Market Value
of all outstanding Voting Shares of the
Corporation as of the date on which the Interested
Stockholder became an Interested Stockholder (the
"Determination Date") except pursuant to a share
dividend or the exercise of rights or warrants
distributed or offered on a basis affording
substantially proportionate treatment to all
holders of the same class or series; or
(E) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation
proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(F) any reclassification of securities
(including any reverse stock split), or
recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether
or not with or into or otherwise involving an
Interested Stockholder) which has the effect,
<PAGE> -20-
directly or indirectly (in one transaction or a
series of transactions during any 12 month
period), of increasing by more than 5% the
percentage of any class of securities of the
Corporation or any Subsidiary directly or
indirectly owned by any Interested Stockholder or
any Affiliate or Associate of any Interested
Stockholder;
shall require the affirmative vote of the holders of at
least 70% of the outstanding Voting Shares. 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 or in any agreement
with any national securities exchange or otherwise.
(ii) Definition of "Business Combination." The
term "Business Combination" as used in this Article
shall mean any transaction which is referred to in any
one or more of clauses (A) through (F) of paragraph (i)
of this Section (a).
(b) When Higher Vote is Not Required for Certain
Business Combination. The provisions of Section (a) of this
Article shall not be applicable to any particular Business
Combination, and such Business Combination shall require
only such approval as is required by law and any other
provision of these Articles of Incorporation, if
consideration will be paid to the holders of each class or
series of Voting Shares and all of the conditions specified
in either of the following paragraphs (i) or (ii) are met.
(i) Approval by Disinterested Directors. The
Business Combination shall have been approved by a
majority of those persons who are Disinterested
Directors (as hereinafter defined).
(ii) Price and Procedure Requirements.
(A) The aggregate amount of the cash and the
Fair Market Value as of the Valuation Date of
consideration other than cash to be received per
share by holders of each class or series of Voting
Shares in such Business Combination shall be at
least equal to the highest of the following
(taking into account all stock dividends and stock
splits):
(I) (If applicable) the highest per
share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested
Stockholder for any shares of such class or
series acquired by it (1) within the two year
period (the "Preannouncement Period") ending
at 11:59 p.m., Eastern time, on the date of
the first public announcement of the proposal
of the Business Combination (the
"Announcement Date") or (2) in the
transaction in which it became an Interested
<PAGE> -21-
Stockholder, whichever is higher;
(II) the Fair Market Value per share of
such class or series on the Determination
Date or on the day after the Announcement
Date, whichever is higher;
(III) (if applicable) the price per
share equal to the Fair Market Value per
share of such class or series determined
pursuant to paragraph (ii)(A)(II) above,
multiplied by the ratio of (1) the highest
per share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested
Stockholder for any shares of such class or
series acquired by it within the
Preannouncement Period, to (2) the Fair
Market Value per share of such class or
series on the first day during the
Preannouncement Period upon which the
Interested Stockholder acquired any shares of
such class or series; and
(IV) (if applicable), the highest
preferential amount, if any, per share to
which the holders of such class or series are
entitled in the event of any voluntary or
involuntary dissolution of the Corporation.
(B) The consideration to be received by the
holder of outstanding shares in such Business
Combination shall be in cash or in the same form
as the Interested Stockholder has previously paid
for shares of the same class or series. If the
Interested Stockholder has paid for shares with
varying forms of consideration, the form of
consideration shall be either cash or the form
used to acquire the largest number of shares of
such class or series previously acquired by the
Interested Stockholder.
(C) During such portion of the three year
period preceding the Announcement Date that such
Interested Stockholder has been an Interested
Stockholder, except as approved by a majority of
the Disinterested Directors: (a) there shall have
been no failure to declare and pay at the regular
date therefor any full periodic dividends (whether
or not cumulative) on any outstanding shares of
the Corporation; (b) there shall have been (1) no
reduction in the annual rate of dividends paid on
any class or series of Voting Shares, (except as
necessary to reflect any subdivision of the class
or series) and (2) an increase in such annual rate
of dividends as necessary to reflect any
reclassification (including any reverse stock
split), recapitalization, reorganization or any
similar transaction which has the effect of
reducing the number of outstanding shares of the
<PAGE> -22-
class or series; and (c) such Interested
Stockholder shall have not become the beneficial
owner of any additional Voting Shares except as
part of the transaction which results in such
Interested Stockholder becoming an Interested
Stockholder.
(D) During such portion of the three year
period preceding the Announcement Date that such
Interested Stockholder has been an Interested
Stockholder, except as approved by a majority of
the Disinterested Directors, such Interested
Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as
a stockholder), 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.
(E) Except as otherwise approved by a
majority of the Disinterested Directors, 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
stockholders of the Corporation at least 20 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 or subsequent provisions).
(c) Certain Definitions.
For the purposes of this Article:
(i) A "person" shall mean any individual, firm,
corporation, partnership, joint venture, or other
entity.
(ii) "Interested Stockholder" shall mean any
person who or which is the beneficial owner, directly
or indirectly, of 20% or more of the outstanding Voting
Shares of the Corporation; provided, however, the term
Interested Stockholder shall not include the
Corporation, any Subsidiary, or any savings, employee
stock ownership or other employee benefit plan of the
Corporation or any Subsidiary, or any fiduciary with
respect to any such plan when acting in such capacity.
For the purposes of determining whether a person is an
Interested Stockholder, the number of shares of Voting
Shares deemed to be outstanding shall include shares deemed
owned through application of paragraph (iii) of this Section
(c) but shall not include any other Voting Shares that may
be issuable pursuant to any contract, arrangement or
understanding, or upon exercise of conversion rights,
<PAGE> -23-
exchange rights, warrants or options, or otherwise.
(iii) A person shall be a "beneficial owner" of
any Voting Shares as to which such person and any of
such person's Affiliates or Associates, individually or
in the aggregate, have or share directly, or indirectly
through any contract, arrangement, understanding,
relationship, or otherwise:
(A) voting power, which includes the power
to vote, or to direct the voting of the Voting
Shares;
(B) investment power, which includes the
power to dispose or to direct the disposition of
the Voting Shares;
(C) economic benefit, which includes the
right to receive or control the disposition of
income or liquidation proceeds from the Voting
Shares; or
(D) the right to acquire voting power,
investment power or economic benefit (whether such
right is exercisable immediately or only after the
passage of time) pursuant to any contract,
arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants or
options, or otherwise;
provided, that in no case shall a Director of the
Corporation be deemed to be the beneficial owner of
Voting Shares beneficially owned by another Director of
the Corporation solely by reason of actions undertaken
by such persons in their capacity as Directors of the
Corporation,
(iv) "Affiliate" means a person that directly, or
in directly through one or more intermediaries,
controls or is controlled by, or is under common
control with the person specified.
(v) "Associate" means as to any specified
person:
(A) any entity (other than the Corporation
and its Subsidiaries) of which such person is an
Officer, Director or partner or is, directly or
indirectly, the beneficial owner of 10% or more of
the Voting Shares;
(B) 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; or
(C) any relative or spouse of such person,
or any relative of such spouse, who has the same
home as such person or who is an Officer or
Director of the Corporation or any of its
<PAGE> -24-
(vi) As to any Corporation, "Subsidiary" means
any other Corporation of which it owns directly or
indirectly a majority of the Voting Shares.
(vii) "Disinterested Director" means any member of
the Board of Directors who:
(A) was elected to the Board of Directors of
the Corporation at the 1986 Annual Meeting of
Shareholders; or
(B) was recommended for election by a
majority of the Disinterested Directors then on
the Board, or was elected by the Board to fill a
vacancy and received the affirmative vote of a
majority of the Disinterested Directors then on
the Board.
(viii) "Fair Market Value" means:
(A) in the case of stock the highest closing
sale price during the 30 day period ending at
11:59 p.m., Eastern time, on 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 ending at 11:59 p.m.,
Eastern time, on the date in question on the
National Association of Securities Dealers, Inc.
Automated Quotations System or any 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; 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.
(ix) "Voting Shares" shall mean the outstanding
shares of all classes or series of the Corporation's
stock entitled to vote generally in the election of
Directors.
(x) "Control" shall mean the possession, directly
or indirectly, through the ownership of voting
securities, by contract, arrangement, understanding,
relationship or otherwise, of the power to direct or
cause the direction of the management and policies of
the person. The beneficial ownership of 20% or more of
the Corporation's Voting Shares shall be deemed to
constitute control.
<PAGE> -25-
(d) Certain Determinations.
Directors who are Disinterested Directors of the
Corporation shall have the power and duty to determine
for the purpose of this Article, on the basis of
information known to them after reasonable inquiry, (i)
whether a particular person is an Interested
Stockholder, (ii) the number of Voting Shares
beneficially owned by such person, (iii) whether any
person is an Affiliate or Associate of such person, and
(iv) whether the assets that are the subject of any
Business Combination involving such person have an
aggregate Fair Market Value in excess of 5% of the
Corporation's consolidated assets as of the date of the
most recently available financial statement, or the
securities to be issued or transferred by the
Corporation or any Subsidiary in any Business
Combination involving such person have an aggregate
Fair Market Value in excess of 5% of the aggregate Fair
Market Value of all outstanding Voting Shares of the
Corporation as of the Determination Date.
(e) No Effect on Certain Obligations.
Nothing contained in this Article shall be
construed to relieve any Interested Stockholder or any
Director of the Corporation from any obligation imposed
by law.
(f) Amendment or Repeal.
The provisions of this Article shall not be
amended or repealed, nor shall any provision of these
Articles of Incorporation be adopted that is
inconsistent with this Article, unless such action
shall have been approved by the affirmative vote of
either:
(i) the holders of at least 70% of the
outstanding Voting Shares; or
(ii) a majority of those Directors who are
Disinterested Directors and the holders of the
requisite number of shares specified under
applicable North Carolina law for the amendment of
the charter of a North Carolina corporation.
11. This Restated and Amended Charter was adopted by the
shareholders of the Corporation on the 16th day of June, 1986, in
the manner prescribed by law for adopting a charter amendment;
and it integrates the original Articles of Incorporation and all
amendments thereto.
12. The number of shares of Common Stock (the only class of
stock outstanding) of the Corporation outstanding at the time
shareholders voted was 39,618,225; and the number of shares of
Common Stock entitled to vote was 37,106,438.
13. The number of shares of Common Stock voted for
<PAGE> -26-
amendment of the Charter to authorize a class of Preferred Stock
consisting of 5 million shares was 24,999,783; the number of
shares of Common Stock voted against adoption of such proposal
was 5,900,610; and the number of shares of Common Stock
abstaining from voting on such proposal was 1,806,088.
14. The number of shares of Common Stock voted for
amendment of the Charter to provide for classification of the
Board of Directors into three classes and that directors cannot
be removed during their term of office without the affirmative
vote of holders of at least 70% of outstanding shares of Common
Stock was 24,641,126; the number of shares of Common Stock voted
against such proposal was 6,265,258; and the number of shares of
Common Stock abstaining from voting on such proposal was
1,800,097.
15. The number of shares of Common Stock voted for
amendment of the Charter to provide for certain minimum price
procedures or, alternatively, require a higher voting requirement
for certain transactions, was 24,941,586; the number of shares of
Common Stock voted against such proposal was 5,636,077; and the
number of shares of Common Stock abstaining from voting on such
proposal was 2,128,818.
16. The number of shares of Common Stock voted for approval
of a Restated and Amended Charter incorporating those of the
proposals described in paragraphs 13, 14 and 15 which were
approved by shareholders was 26,624,636; the number of shares of
Common Stock voted against such proposal was 4,978,302; and the
number of shares of Common Stock abstaining from voting on such
proposal was 1,103,543.
17. Adoption of the proposals described in paragraphs 13,
14, 15 and 16 did not give rise to (i) dissenter's rights,
because the amendments to the Charter and adoption of the
Restated and Amended Charter do not change the Corporation into a
non-profit corporation or cooperative organization and no shares
of the Corporation that are outstanding are entitled to any
preference as to dividends or liquidation, or (ii) class voting
rights, because the only class of stock outstanding is Common
Stock.
IN WITNESS WHEREOF, this statement is executed by the
president and secretary of the corporation this 25th day of
June, 1986.
LOWE'S COMPANIES, INC.
By /s/ Leonard G. Herring
President
By /s/ Richard D. Elledge
Secretary
<PAGE> -27-
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Geraldine Bumgarner, a notary public, hereby certify that
on this 25th day of June, 1986, personally appeared before me
Leonard G. Herring and Richard D. Elledge, each of whom being by
me first duly sworn, declared that he signed the foregoing
document in the capacity indicated, that he was authorized so to
sign, and that the statements therein contained are true.
/s/ Geraldine Bumgarner
Notary Public
My Commission Expires: September 21, 1988
<PAGE> -28-
ARTICLES OF AMENDMENT OF
LOWE'S COMPANIES, INC.
The undersigned corporation hereby executes these Articles
of Amendment for the purpose of amending its charter:
1. The name of the corporation is Lowe's Companies, Inc.
2. The following amendment to the charter of the
corporation was adopted by its shareholders on the 5th day of
November, 1987, in the manner prescribed by law:
By adding the following sub-paragraph:
9.(f) To the full extent that the North Carolina
Business Corporation Act, as it exists on the date that this
Amendment became effective, permits the elimination of the
liability of Directors, a Director of the Company shall not be
liable for monetary damages for breach of his duty as a Director.
3. The number of shares of the corporation outstanding at
the time of such adoption was 39,630,050; and the number of
shares entitled to vote thereon was 39,630,050.
4. The designation and number of outstanding shares of
each class entitled to vote on such amendment as a class were as
follows:
Number of
Class Shares
Common 39,630,050
5. The number of shares voted for such amendment was
30,174,450; and the number of shares voted against such amendment
was 2,775,537. Voting within each class entitled to vote as a
class was as follows:
Number of Shares Voted
Class For Against
Common 30,174,450 2,775,537
6. The amendment herein effected does not give rise to
dissenter's rights to payment for the reason that the only effect
of such amendment is to add an article to the Articles of
Incorporation limiting the liability of Directors of the
Corporation.
<PAGE> -29-
IN WITNESS WHEREOF, these articles are signed by the
president and secretary of the corporation this 6th day of
November, 1987.
/s/ Leonard G. Herring
Leonard G. Herring, President
/s/ Richard D. Elledge
Richard D. Elledge, Secretary
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Geraldine Bumgarner, a notary public, hereby certify that
on this 6th day of November, 1987, personally appeared before me
Leonard G. Herring and Richard D. Elledge, each of whom being by
me first duly sworn, declared that he signed the foregoing
document in the capacity indicated, that he was authorized so to
sign, and that the statements therein contained are true.
/s/ Geraldine Bumgarner
Notary Public
My Commission Expires: September 21, 1988
<PAGE> -30-
STATEMENT OF CLASSIFICATION OF SHARES
OF
LOWE'S COMPANIES, INC.
1. The name of the corporation is LOWE'S COMPANIES, INC.
2. On September 9, 1988, pursuant to Sections 55-41 and
55-42 of the North Carolina Business Corporation Act and the
authority conferred upon the Board of Directors by the Restated
and Amended Charter of Corporation, the Board of Directors of the
Corporation duly adopted the following resolutions creating a
series of 160,000 shares of Preferred Stock designated as
Participating Cumulative Preferred Stock, Series A:
RESOLVED, that it is hereby declared to be in the best
interests of the Corporation that a new series of Preferred
Stock be created to consist of 160,000 shares and to be
designated as Participating Cumulative Preferred Stock,
Series A, and to determine the preferences, limitations and
relative rights of the Participating Cumulative Preferred
Stock, Series A, by adopting a Statement of Classification
of Shares of Lowe's Companies, Inc. to read in the form
attached hereto as Appendix I
RESOLVED, that the Statement of Classification of
Shares of the Corporation attached hereto as Appendix I is
hereby adopted and that the appropriate officers of the
Corporation are authorized and directed to prepare and to
file with the North Carolina Secretary of State a Statement
of Classification of Shares of Lowe's Companies, Inc. to
give effect thereto.
3. That Appendix I hereto constitutes the Statement of
Classification of Shares of Lowe's Companies, Inc. referred to in
the foregoing resolutions.
4. That such Statement of Classification of Shares of
Lowe's Companies, Inc. was adopted before the issuance of the
Participating Cumulative Preferred Stock, Series A, by the Board
of Directors of the Corporation on September 9, 1988.
Shareholder action was not required.
Dated: September 9, 1988
LOWE'S COMPANIES, INC.
By: /s/ Robert L. Strickland
Robert L. Strickland
Chairman of the Board
Attest:
/s/ Richard D. Elledge
Secretary
[Corporate Seal]
<PAGE> -31-
Appendix I
The Corporation has designated 160,000 shares of the
authorized but unissued shares of the Corporation's Preferred
Stock, par value $5.00 per share, as Participating Cumulative
Preferred Stock, Series A (hereinafter referred to as "Series A
Preferred Stock"). The terms of the Series A Preferred Stock, in
the respect in which the shares of such series may vary from
shares of any and all other series of Preferred Stock, are as
follows:
(a) Dividends and Distributions.
(1) The holders of shares of Series A
Preferred Stock in preference to the holders of
Common Stock and of any other junior stock, shall
be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally
available therefor, dividends payable quarterly on
the last business day of each April, July, October
and January (each such date being referred to
herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock,
in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $120 or (b)
subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000
times the aggregate per share amount (payable in
kind) of all non-cash dividends or other
distributions other than a dividend payable in
shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by
reclassification or otherwise), declared on the
Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect
to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction
of a share of Series A Preferred Stock. In the
event the Corporation shall at any time after
September 9, 1988 (the Rights Declaration Date"),
(i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the out-
standing Common Stock, or (iii) combine the out-
standing Common Stock into a smaller number of
shares, then in each such case the amount to which
holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under
clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of
Common Stock outstanding immediately after such
event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
<PAGE> -32-
(2) The Corporation shall declare a dividend
or distribution on the Series A Preferred Stock as
provided in paragraph (1) above immediately after
it declares a dividend or distribution on the Com-
mon Stock (other than a dividend payable in shares
of Common Stock); provided that, in the event no
dividend or distribution shall have been declared
on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a
dividend of $120 per share on the Series A
Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(3) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of
such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the
record date for the first Quarterly Dividend
Payment Date, in which case dividends on such
shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue
is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of
holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin
to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid
on the shares of Series A Preferred Stock in an
amount less than the total amount of such
dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time
outstanding. The Board of Directors may fix a
record date for the determination of holders of
shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution
declared thereon, which record date shall be no
more than 30 days prior to the date fixed for the
payment thereof.
(b) Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following
voting rights:
(1) Subject to the provision for adjustment
hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote
of the shareholders of the Corporation. In the
event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or
<PAGE> -33-
(iii) combine the outstanding Common Stock into a
smaller number of votes per share to which holders
of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of
Common Stock outstanding immediately after such
event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(2) Except as otherwise provided herein, in
the Restated and Amended Charter, or under
applicable law, the holders of shares of Series A
Preferred Stock and the holders of shares of
Common Stock shall vote together as one voting
group on all matters submitted to a vote of
stockholders of the Corporation
(3) (i) If at any time dividends on any
shares of Series A Preferred Stock shall be
in arrears in an amount equal to six
quarterly dividends thereon, the occurrence
of such contingency shall mark the beginning
of a period (a "default period") that shall
extend until such time when all accrued and
unpaid dividends for all previous quarterly
dividend periods and for the current
quarterly dividend period on all shares of
Series A preferred Stock then outstanding
shall have been declared and paid or set
apart for payment. During each default
period, all holders of the outstanding shares
of Series A Preferred Stock together with any
other series of Preferred Stock then entitled
to such a vote under the terms of the
Restated and Amended Charter, voting as a
separate voting group, shall be entitled to
elect two members of the Board of Directors
of the Corporation.
(ii) During any default period, such
voting right of the holders of Series A
Preferred Stock may be exercised initially at
a special meeting called pursuant to
subparagraph (iii) of this Subsection (b)(3)
or at any annual meeting of stockholders, and
thereafter at annual meetings of
stockholders, provided that neither such
voting right nor the right of the holders of
any other series of Preferred Stock, if any,
to increase, in certain cases, the authorized
number of Directors shall be exercised unless
the holders of ten percent (10%) in number of
shares of Preferred Stock outstanding shall
be present in person or by proxy. The
absence of a quorum of the holders of Common
Stock shall not affect the exercise by the
holders of Preferred Stock of such voting
right. At any meeting at which the holders
<PAGE> -34-
of Preferred Stock shall exercise such voting
right initially during an existing default
period, they shall have the right, voting as
a separate voting group, to elect Directors
to fill such vacancies, if any, in the Board
of Directors as may then exist up to two (2)
Directors, or if such right is exercised at
an annual meeting, to elect two (2)
Directors. If the number which may be so
elected at any special meeting does not
amount to the required number, the holders of
the Preferred Stock shall have the right to
make such increase in the number of Directors
as shall be necessary to permit the election
by them of the required number. After the
holders of the Preferred Stock shall have
exercised their right to elect Directors in
any default period and during the continuance
of such period, the number of Directors shall
not be increased or decreased except by vote
of the holders of Preferred Stock as herein
provided or pursuant to the rights of any
equity securities ranking senior to or pari
passu with the Series A Preferred Stock.
(iii) Unless the holders of Preferred
Stock shall, during an existing default
period, have previously exercised their right
to elect Directors, the Board of Directors
may order, or any stockholder or stockholders
owning in the aggregate not less than ten
percent (10%) of the total number of shares
of Preferred Stock outstanding, irrespective
of series, may request, the calling of a
special meeting of the holders of Preferred
Stock, which meeting shall thereupon be
called by the Chairman, President, a Vice-
President or the Secretary of the
Corporation. Notice of such meeting and of
any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant
to this paragraph (b)(3)(iii) shall be given
to each holder of record of Preferred Stock
by mailing a copy of such notice to him at
his last address as the same appears on the
books of the Corporation. Such meeting shall
be called for a time not earlier than 10 days
and not later than 60 days after such order
or request. In the event such meeting is not
called within 60 days after such order or
request, such meeting may be called on
similar notice by any stockholder or
stockholders owning in the aggregate not less
than ten percent (10%) of the total number of
shares of Preferred Stock outstanding.
Notwithstanding the provisions of this
paragraph (b)(3)(iii), no such special
meeting shall be called during the period
within 60 days immediately preceding the date
fixed for the next annual meeting of the
<PAGE> -35-
stockholders.
(iv) In any default period, the holders
of Common Stock, and other classes of stock
of the Corporation if applicable, shall
continue to be entitled to elect the whole
number of Directors until the holders of
Preferred Stock shall have exercised their
right to elect two (2) Directors voting as a
separate voting group, after the exercise of
which right (x) the Directors so elected by
the holders of Preferred Stock shall continue
in office until their successors shall have
been elected by such holders or until the
expiration of the default period, and (y) any
vacancy in the Board of Directors may (except
as provided in paragraph (b)(3)(ii)) be
filled by vote of a majority of the remaining
Directors theretofore elected by the voting
group which elected the Director whose office
shall have become vacant. References in this
paragraph (b)(3)(iv) to Directors elected by
a particular voting group shall include
Directors elected by such Directors to fill
vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of
a default period, (x) the right of the
holders of Preferred Stock, as a separate
voting group, to elect Directors shall cease,
(y) the term of any Directors elected by the
holders of Preferred Stock, as a separate
voting group, shall terminate, and (z) the
number of Directors shall be such number as
may be provided for in, or pursuant to, the
Restated and Amended Charter or bylaws
irrespective of any increase made pursuant to
the provisions of paragraph 5(b)(3)(ii) (such
number being subject, however, to change
thereafter in any manner provided by law or
in the Restated and Amended Charter or by-
laws). Any vacancies in the Board of
Directors affected by the provisions of
clauses (y) and (z) in the preceding sentence
may be filled by a majority of the remaining
Directors, even though less than a quorum.
(4) Except as set forth herein or as
otherwise provided in the Restated and Amended
Charter, holders of Series A Preferred Stock shall
have no special voting rights and their consent
shall not be required (except to the extent they
are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate
action.
(c) Certain Restrictions.
(1) Whenever quarterly dividends or other
<PAGE> -36-
dividends or distributions payable on the Series A
Preferred Stock as provided in Subsection (a) are
in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay or set apart for
payment any dividends (other than dividends
payable in shares of any class or classes of
stock of the Corporation ranking junior to
the Series A Preferred Stock) or make any
other distributions on, any class of stock of
the Corporation ranking junior (either as to
dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock
and shall not redeem, purchase or otherwise
acquire, directly or indirectly, whether
voluntarily, for a sinking fund, or otherwise
any shares of any class of stock of the
Corporation ranking junior (either as to
dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock,
provided that, notwithstanding the foregoing,
the Corporation may at any time redeem,
purchase or otherwise acquire shares of stock
of any such junior class in exchange for, or
out of the net cash proceeds from the
concurrent sale of, other shares of stock of
any such junior class;
(ii) declare or pay dividends on or
make any other distributions on any shares of
stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred
Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity
stock on which dividends are payable or in
arrears in proportion to the total amounts to
which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock
ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock,
provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares
of any such parity stock in exchange for
shares of any stock of the Corporation
ranking junior (either as to dividends or
upon dissolution, liquidation or winding up)
to the Series A Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A
Preferred Stock, or any shares of stock
<PAGE> -37-
ranking on a parity with the Series A
Preferred Stock, except in accordance with a
purchase offer made in writing or by
publication (as determined by the Board of
Directors) to all holders of such shares upon
such terms as the Board of Directors, after
consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and
classes, shall determine in good faith will
result in fair and equitable treatment among
the respective series or classes.
(2) The Corporation shall not permit any
subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation
could, under Paragraph (1) of Subsection (c),
purchase or otherwise acquire such shares at such
time and in such manner.
(d) Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject
to the conditions and restrictions on issuance set forth
herein.
(e) Liquidation, Dissolution or Windinq Up.
(1) Upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred
Stock shall have received $5.00 per share, plus an
amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount
of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of
Series A Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received
an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in subparagraph 3 below to
reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock)
(such number in clause (ii) being hereinafter referred
to as the "Adjustment Number"). Following the payment
of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all
<PAGE> -38-
outstanding shares of Series A Preferred Stock and
Common Stock, respectively, holders of Series A
Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Series
A Preferred Stock and Common Stock, on a per share
basis, respectively.
(2) In the event, however, that there are not
sufficient assets available to permit payment in full
of the Series A Liquidation Preference and the
liquidation preferences of all other series of
Preferred Stock, if any, then such remaining assets
shall be distributed ratably to the holders of all such
shares in proportion to their respective liquidation
preferences. In the event, however, that there are not
sufficient assets available to permit payment in full
of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common
Stock.
(3) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment
Number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(f) Consolidation, Merger, Share Exchange, etc. In
case the Corporation shall enter into any consolidation,
merger, share exchange, combination or other transaction in
which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any
other property, then in any such case the shares of Series A
Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to
1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
<PAGE> -39-
outstanding immediately prior to such event.
(g) Redemption. The outstanding shares of Series A
Preferred Stock may be redeemed at the option of the Board
of Directors as a whole, but not in part, at any time, or
from time to time, at a cash price per share equal to (i)
100% of the product of the Adjustment Number times the
Average Market Value (as such term is hereinafter defined)
of the Common Stock, plus (ii) all dividends which on the
redemption date have accrued on the shares to be redeemed
and have not been paid or declared and a sum sufficient for
the payment thereof set apart, without interest. The
"Average Market Value" is the average of the closing sale
prices of a share of the Common Stock during the 30-day
period immediately preceding the date before the redemption
date 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, as amended, on which such
stock is listed, or, if such stock is not listed on any such
exchange, the average of the closing bid quotations with
respect to a share of Common Stock during such 30-day period
on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or if
no such quotations are available, the fair market value of a
share of the Common Stock as determined by the Board of
Directors in good faith.
(h) Ranking. The Series A Preferred Stock shall rank
on a parity with any and all other series of Preferred Stock
as to the payment of dividends and the distribution of
assets.
(i) Amendment. The Restated and Amended Charter shall
not be further amended in any manner that would adversely
affect the preferences, rights or powers of the Series A
Preferred Stock without the affirmative vote of the holders
of more than two-thirds of the outstanding shares of the
Series A Preferred Stock, if any, voting separately as one
voting group.
(j) Fractional Shares. Series A Preferred Stock may
be issued in fractions of one one-thousandth of a share (and
integral multiples thereof) which shall entitle the holder,
in proportion to such holders' fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
<PAGE> -40-
ARTICLES OF MERGER
OF
LOWE'S OF OHIO, INC.
INTO
LOWE'S COMPANIES, INC.
The undersigned corporations hereby execute these Articles
of Merger for the purpose of merging the wholly-owned subsidiary
corporation into its parent corporation:
I. The following Plan and Agreement of Merger was duly
approved by the Board of Directors of each of the undersigned
corporations in the manner prescribed by law:
SEE ATTACHED PLAN AND AGREEMENT OF MERGER
II. At the time of the approval of the foregoing Plan and
Agreement of Merger by the Board of Directors of each of the
undersigned corporations the surviving corporation was the owner
of all the outstanding shares of the other corporation; and the
foregoing Plan and Agreement of Merger does not provide for any
changes in the charter of, or the issuance of any shares by, the
surviving corporation.
III. The foregoing Plan and Agreement of Merger was approved
by the sole shareholder of Lowe's of Ohio, Inc. on the 2nd day of
December, 1988.
IV. The merger between the corporations shall be effective
as of the close of business for the corporations on December 31,
1988.
IN WITNESS WHEREOF, these articles are signed by the
President and Secretary of each corporation this 22nd day of
December, 1988 at 11:59 p.m.
LOWE'S OF OHIO, INC.
By: /s/ Leonard G. Herring (SEAL)
LEONARD, G. HERRING, President
ATTEST:
/s/ Richard D. Elledge
RICHARD D. ELLEDGE, Secretary
(CORPORATE SEAL)
LOWE'S COMPANIES, INC.
By: /s/ Leonard G. Herring (SEAL)
LEONARD, G. HERRING, President
ATTEST:
/s/ Richard D. Elledge
RICHARD D. ELLEDGE, Secretary
(CORPORATE SEAL)
<PAGE> -41-
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Gaither M. Keener, Jr., a Notary Public, hereby certify
that on this 22nd day of December, 1988, personally appeared
before me LEONARD G. HERRING, President and RICHARD D. ELLEDGE,
Secretary of Lowe's of Ohio, Inc.; each of whom being by me first
duly sworn, declared that he signed the foregoing document in the
capacity indicated, that he was authorized so to sign, and that
the statements therein contained are true.
/s/ Gaither M. Keener, Jr. (SEAL)
NOTARY PUBLIC
My Commission Expires:
April 30, 1991
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Gaither M. Keener, Jr., a Notary Public, hereby certify
that on this 22nd day of December, 1988, personally appeared
before me LEONARD G. HERRING, President and RICHARD D. ELLEDGE,
Secretary of Lowe's Companies, Inc; each of whom being by me
first duly sworn, declared that he signed the foregoing document
in the capacity indicated, that he was authorized so to sign, and
that the statements therein contained are true.
/s/ Gaither M. Keener, Jr. (SEAL)
NOTARY PUBLIC
My Commission Expires:
April 30, 1991
<PAGE> -42-
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Agreement") is made
as of December 22nd, 1988 by Lowe's Companies, Inc., a North
Carolina corporation (the "Surviving Corporation") and Lowe's of
Ohio, Inc., an Ohio corporation (the "Merging Corporation").
RECITALS:
A. The Merging Corporation is a wholly-owned subsidiary of
the Surviving Corporation, with the Surviving Corporation owning
all 500 issued and outstanding shares of common stock of the
Merging Corporation.
B. The Surviving Corporation and the Merging Corporation
have agreed to reorganize by merging the Merging Corporation into
the Surviving Corporation as provided in this Agreement, with no
change to occur in the Articles of Merger of incorporation of the
Surviving Corporation after the effective date of the merger.
STATEMENT OF AGREEMENT:
In consideration of the mutual covenants contained in this
Agreement, each of the Surviving Corporation and the Merging
Corporation agrees as follows;
ARTICLE 1
Merger into the Surviving Corporation
Section 1.1 Merger. As of the Effective Date (as
hereinafter defined), the Merging Corporation, as a constituent
corporation within the meaning of Section 1701.01 of the Ohio
Revised Code, shall be merged, pursuant to Sections 1701.79 and
1701.80 of the Ohio Revised Code and pursuant to Sections
55-108.1 and 55-111 of the North Carolina General Statutes, into
the Surviving Corporation as the surviving corporation within the
meaning of Section 1701.01 of the Ohio Revised Code and Section
55-110 of the North Carolina General Statutes. The existing
Articles of Merger of incorporation of the Surviving Corporation
shall be the Articles of Merger of incorporation of the Surviving
Corporation until amended in accordance with law.
Section 1.2 Effective Date. The Effective Date shall be
11:59 p.m., Eastern Standard Time, on December 31, 1988.
Section 1.3 Articles and Agreement of Merger. This
Agreement shall serve as the "Articles of Merger" within the
meaning of Section 55-109 of the North Carolina General Statutes,
as well as the "Agreement of Merger" within the meaning of
Sections 1701.79 and 1701.80 of the Ohio Revised Code.
ARTICLE 2
Extinguishment of Constituent Shares
Section 2.1 Extinguishment of Constituent Shares. At the
Effective Date and as a result of the merger of the Merging
<PAGE> -43-
Corporation into the Surviving Corporation, the shares of each
outstanding class of capital stock of the Merging Corporation
shall, automatically and without further act of either the
Merging Corporation or any holder of any such share, be
extinguished.
ARTICLE 3
Process; Qualification
Section 3.1 Service of Process. The Surviving Corporation
hereby agrees that it may be served with process in the State of
Ohio in any proceeding for enforcement of any obligation of the
Merging Corporation as well as for enforcement of any obligation
resulting from the merger, and hereby irrevocably appoints the
Secretary of State of the State of Ohio as its agent to accept
service of process in any such proceeding. The address to which
a copy of such process shall be mailed by the Secretary of State
of Ohio is Leonard G. Herring, President, Lowe's Companies, Inc.,
Box 1111, North Wilkesboro, North Carolina 28656-0001.
Section 3.2 Foreign Qualification. The Surviving
Corporation desires to transact business in the State of Ohio as
a foreign corporation. The Surviving Corporation does hereby
irrevocably consent that it may be served with any process in the
State of Ohio by service upon C. T. Corporation Systems, 815
Superior Avenue, North East, Cleveland, Ohio 44144 (the "Named
Agent") and any successor Named Agent that may be appointed
pursuant to Chapter 1703, Ohio Revised Code; and the Surviving
Corporation hereby irrevocably consents to the service of process
upon the Secretary of State of the State of Ohio as its agent to
receive such process in the event that the Named Agent cannot be
found or in any other event as provided in Chapter 1703, Ohio
Revised Code.
ARTICLE 4
Amendment
Section 4.1 Amendment. From time to time and at any time
prior to the Effective Date, this Agreement may be amended by an
agreement in writing authorized by the respective Boards of
Directors of the Surviving Corporation and the Merging
Corporation and executed in the same manner as this Agreement.
ARTICLE 5
Miscellaneous
Section 5.1 Headings. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any of the provisions of this
Agreement.
Section 5.2 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an original
and all of which shall constitute one and the same document.
<PAGE> -44-
Section 5.3 Severability. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any
jurisdiction for any reason, such invalidity, illegality or
unenforceability shall not affect the remainder of this
Agreement, and the remainder of this Agreement shall be construed
and enforced as if such invalid, illegal or unenforceable portion
were not contained herein.
Section 5.4 Governing Law. This Agreement shall be
governed by and construed under the laws of the State of North
Carolina.
The Surviving Corporation: The Merging Corporation:
Lowe's Companies, Inc. Lowe's of Ohio, Inc.
By: /s/ Leonard G. Herring By: /s/ Leonard G. Herring
Title: President Title: President
Attest: Attest:
/s/ Richard D. Elledge /s/ Richard D. Elledge
Secretary (Corporate Seal) Secretary (Corporate Seal)
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Gaither M. Keener, Jr., a Notary Public, hereby certify
that on this 22nd day of December, 1988, personally appeared
before me LEONARD G. HERRING, President and RICHARD D. ELLEDGE,
Secretary of Lowe's of Ohio, Inc.; each of whom being by me first
duly sworn, declared that he signed the foregoing document in the
capacity indicated, that he was authorized so to sign, and that
the statements therein contained are true.
/s/ Gaither M. Keener, Jr. (SEAL)
NOTARY PUBLIC
My Commission Expires:
April 30, 1991
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Gaither M. Keener, Jr., a Notary Public, hereby certify
that on this 22nd day of December, 1988, personally appeared
before me LEONARD G. HERRING, President and RICHARD D. ELLEDGE,
Secretary of Lowe's Companies, Inc; each of whom being by me
first duly sworn, declared that he signed the foregoing document
in the capacity indicated, that he was authorized so to sign, and
that the statements therein contained are true.
/s/ Gaither M. Keener, Jr. (SEAL)
NOTARY PUBLIC
My Commission Expires:
April 30, 1991
<PAGE> -45-
ARTICLES OF AMENDMENT
TO
RESTATED AND AMENDED CHARTER
OF
LOWE'S COMPANIES, INC.
The undersigned corporation hereby submits these Articles of
Amendment for the purpose of amending its Restated and Amended
Charter:
1. The name of the corporation is
LOWE'S COMPANIES, INC.
2. The Restated and Amended Charter is amended as follows:
The first paragraph of Article 4 of the Restated and
Amended Charter is struck out and the following is
substituted
therefor:
4. Authorized Stock. The Corporation shall have
the authority to issue 5,000,000 shares of
Preferred Stock of a par value of $5 per share and
240,000,000 shares of Common Stock of a par value
of $.50 per share.
3. No shares of Preferred Stock are issued and outstanding.
4. Each issued and unissued share of Common Stock, upon the
effectiveness of these Articles of Amendment, shall be
changed into two shares of Common Stock. The Corporation
shall deliver to each record holder of Common Stock on
March 16, 1994, a new certificate representing the number of
additional shares to which such record holder is entitled
pursuant to the foregoing amendment.
5. The foregoing amendment was adopted on the 7th day of March,
1994, by the Board of Directors of the Corporation pursuant
to North Carolina General Statutes 55-10-2(4) without
shareholder action.
6. These Articles of Amendment shall be effective as of 5:00
p.m. on March 16, 1994.
Dated: March 7, 1994 LOWE'S COMPANIES, INC.
By: /s/ Leonard G. Herring
Leonard G. Herring
President and CEO
<PAGE> -46-
ARTICLES OF AMENDMENT
TO
RESTATED AND AMENDED CHARTER
OF
LOWE'S COMPANIES, INC.
The undersigned corporation hereby submits these Articles of
Amendment for the purpose of amending its Restated and Amended
Charter:
1. The name of the corporation is LOWE'S COMPANIES, INC.
2. The Restated and Amended Charter is amended as follows:
The first paragraph of Article 4 of the Restated and
Amended Charter is revised as follows:
4. Authorized Stock. The Corporation shall have
the authority to issue 5,000,000 shares of
Preferred Stock of a par value of $5 per share and
700,000,000 shares of Common Stock of a par value
of $.50 per share.
3. The amendment was approved on May 27, 1994 by the
shareholders in the manner prescribed by North Carolina
General Statutes Section 55-10-03.
Dated: June 7, 1994 LOWE'S COMPANIES, INC.
By: /s/ Leonard G. Herring
Leonard G. Herring
President and CEO
<PAGE> -47-
ARTICLES OF AMENDMENT TO
RESTATED AND AMENDED CHARTER OF
LOWE'S COMPANIES, INC.
Lowe's Companies, Inc. executes these Articles of Amendment for
the purpose of amending its Restated and Amended Charter:
1. Name - The name of the corporation is Lowe's Companies, Inc.
2. Amendment Adopted: The following amendment to the Amended
and Restated Charter was adopted by the shareholders on May 30, 1997, in
the manner prescribed by Section 55-10-3 of the North Carolina Business
Corporation Act:
Strike Sections 9(a) and 9(b) and replace them with the
following:
9. Board of Directors. (a) Number, Election
Term of Directors. The number of Directors shall be set forth in
the Bylaws, but shall not exceed at any time 15 members. The number of
Directors may not be increased or decreased by more than 30% during any
12-month period except by the affirmative vote of the holders of at
least 70% of the outstanding Voting Shares, as defined in this Article
9. The Board of Directors shall be divided into three classes, Class
I, Class II and Class III, as nearly equal in number as possible, and
with each class' term expiring at the third annual shareholders meeting
after its election. At each Annual Meeting of Shareholders, the
successors to the class of Directors whose term shall then expire shall
be identified as being of the same class as the Directors they succeed
and elected to hold office for a term expiring at the third succeeding
Annual Meeting of Shareholders. When the number of Directors is
changed, any newly-created directorships or any decrease in
directorships shall be so apportioned to one of the classes as to make
all classes as nearly equal in number as possible.
(b) Newly-Created Directorships and Vacancies.
Subject to the rights of the holders of Preferred Stock then
outstanding, any vacancy occurring in the Board of Directors, including
a vacancy resulting from an increase by not more than 30% in the number
<PAGE> -48-
of Directors in any 12-month period, may be filled by the affirmative
vote of the majority of the remaining Directors, though less than a
quorum of the Board of Directors, and the Directors so chosen shall hold
office for a term expiring at the Annual Meeting of Shareholders at
which the term of the class to which they have been elected expires,
subject to any requirement that they be elected by the shareholders at
the annual meeting next following their election by the Board
of Directors. No decrease in the number of Directors constituting the
Board of Directors shall shorten the term of any incumbent Director.
3. Shares Outstanding. The number of shares outstanding on
May 30, 1997 was 173,382,339 shares of Common Stock. The number of
shares entitled to vote the amendment was 173,382,339 shares of Common
Stock. No shares of Preferred Stock were outstanding.
4. Shares Voted. The number of shares of Common Stock voted
for the amendment was 146,453,815. The number of shares of Common Stock
voted against the amendment was 736,014.
5. Signatures: These Articles are signed by the President and
the Secretary on July 17, 1997.
LOWE'S COMPANIES, INC.
By: /s/ Robert L. Tillman
President
And by: /s/ William C. Warden, Jr.
Secretary
STATE OF NORTH CAROLINA
COUNTY OF WILKES
I, Tanya C. Benfield, a notary public, hereby certify that on this
17th day of July, 1997, personally appeared before me Robert L. Tillman
and William C. Warden, Jr., each of whom being by me first duly sworn,
declared that he signed the foregoing document in the capacity
indicated, that he was authorized so to sign, and that the statements
therein contained are true.
/s/ Tanya C. Benfield
Notary Public
My Commission Expires: 8/11/2001
<PAGE> -49-
ARTICLES OF AMENDMENT
TO
RESTATED AND AMENDED CHARTER
OF
LOWE'S COMPANIES, INC.
The undersigned corporation hereby submits these Articles of
Amendment for the purpose of amending its Restated and Amended Charter:
1. The name of the Corporation is
LOWE'S COMPANIES, INC.
2. The Restated and Amended Charter is amended as follows:
The first paragraph of Article 4 of the Restated and
Amended Charter is struck out and the following is
substituted therefor:
4. Authorized Stock. The Corporation shall have
the authority to issue 5,000,000 shares of Preferred
Stock of a par value of $5 per share and 1,400,000,000
shares of Common Stock of a par value of $.50 per
share.
3. No shares of Preferred Stock are issued and outstanding.
4. Upon the effectiveness of these Articles of Amendment, each
issued and each unissued share of Common Stock shall be
changed into two shares of Common Stock. The Corporation
shall deliver to each record holder of Common Stock on June
12, 1998, a new certificate representing the number of
additional shares to which such record holder is entitled
pursuant to the foregoing amendment.
5. The foregoing amendment was adopted on May 28, 1998, by the
Board of Directors of the Corporation pursuant to North
Carolina Code Section 55-10-2(4) without shareholder action.
6. These Articles of Amendment shall be effective as of 5:00
p.m. on June 12, 1998.
Dated: May 28, 1998 LOWE'S COMPANIES, INC.
By: /s/ William C. Warden, Jr.
William C. Warden, Jr.
Executive Vice President, General
Counsel and Secretary
<PAGE> -50-
ARTICLES OF AMENDMENT
TO
STATEMENT OF CLASSIFICATION OF SHARES
OF
LOWE'S COMPANIES, INC.
1. The name of the Corporation is
LOWE'S COMPANIES, INC.
2. On September 13, 1988, a Statement of Classification of Shares
of Lowe's Companies, Inc., was filed to create a series of
160,000 shares of Preferred Stock, designated as Participating
Cumulative Preferred Stock, Series A.
3. On May 28, 1998, the Board of Directors, acting pursuant to
Section 55-6-02 of the North Carolina Business Corporation Act,
adopted, an amendment increasing the size of the series from
160,000 shares to 750,000 shares, all of which are to have the
same description and terms as the currently authorized 160,000
shares of Participating Cumulative Preferred Stock, Series A.
The amendment was adopted by the Board of Directors without
shareholder action, which was not required because the Articles
of Incorporation authorize the Board of Directors to determine
the preferences, limitations and relative rights of a class of
shares before issuance of shares of that class.
4. The Amendment adopted to increase the number of shares is as
follows:
The introductory paragraph of Appendix I is struck and the
following substituted therefor:
The Corporation has designated 750,000 shares of the authorized but
unissued shares of the Corporation's Preferred Stock, par value $5.00
per share, as Participating Cumulative referred Stock, Series A
(hereinafter referred to as "Series A Preferred Stock"). The terms of
the Series A Preferred Stock, in the respect in which the shares of such
series may vary from shares of any and all other series of Preferred
Stock, are as follows:
5. No shares of Participating Cumulative Preferred Stock, Series A
are outstanding.
<PAGE> -51-
6. These Articles of Amendment shall be effective at 9:00 a.m. on
September 1, 1998.
Dated: August 25, 1998
LOWE'S COMPANIES, INC.
By: /s/ William C. Warden, Jr.
William C. Warden, Jr.
Executive Vice President,
General Counsel and Secretary
<PAGE> -52-
ARTICLES OF AMENDMENT TO
RESTATED AND AMENDED CHARTER OF
LOWE'S COMPANIES, INC.
1. Name. The name of the corporation is Lowe's Companies, Inc.
2. Amendment Adopted. The amendment adopted is to strike the
first sentence of Article 9(a) and replace it with the
following:
9. Board of Directors. (a) Number, Election & Term of
Directors. The number of Directors shall be set
forth within the Bylaws, but shall not exceed at any
time twelve (12) members.
3. Shareholder Approval. The amendment was approved by the
corporation's shareholders on May 26, 2000, and shareholder
approval was obtained as required by Chapter 55 of the General
Statutes of North Carolina .
4. Shares Outstanding. The number of shares of Common Stock
outstanding on March 31, 2000, the record date for the meeting
of shareholders at which the amendment was considered, was
382,529,286. The number of shares of Common Stock entitled to
vote on the amendment was 382,529,286. No shares of Preferred
Stock were outstanding.
5. Shares Voted. The number of shares of Common Stock voted for
the amendment was 340,958,000, and the number of shares of
Common Stock voted against the amendment was 597,924. The
shares voted for were sufficient for approval.
LOWE'S COMPANIES, INC.
By: /s/ Stephen A. Hellrung
Stephen A. Hellrung
Senior Vice President, General
Counsel and Secretary
43
