<PAGE> 1
<TABLE>
<S> <C>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1998 REGISTRATION NO. 333-28407
</TABLE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PARK-OHIO HOLDINGS CORP.
(SUCCESSOR TO PARK-OHIO INDUSTRIES, INC.)
(Exact name of Registrant as specified in its charter)
OHIO 34-1867219
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
23000 EUCLID AVENUE
CLEVELAND, OHIO 44117
(Address of principal executive offices)
PARK-OHIO HOLDINGS CORP.
AMENDED AND RESTATED 1992 STOCK OPTION PLAN
(FORMERLY KNOWN AS PARK-OHIO INDUSTRIES, INC.
AMENDED AND RESTATED 1992 STOCK OPTION PLAN)
(Full Title of Plan)
AND
PARK-OHIO HOLDINGS CORP.
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(FORMERLY KNOWN AS PARK-OHIO INDUSTRIES, INC.
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN)
(Full Title of Plan)
Ronald J. Cozean, Esq.
Secretary and General Counsel
23000 Euclid Avenue
Cleveland, Ohio 44117
(216) 692-7200
(Name, address, including zip code
& telephone number, including
area code of agent for service)
With a copy to:
Mary Ann Jorgenson, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
<PAGE> 2
INTRODUCTION
This post-effective amendment is being filed pursuant to Rule 414
under the Securities Act of 1933, as amended (the "Securities Act"), to reflect
the completion, on June 15, 1998, by Park-Ohio Industries, Inc. ("Park-Ohio") of
a corporate reorganization that included creation of Park-Ohio Holdings Corp.
(the "Registrant") as a parent holding company for Park-Ohio (the
"Reorganization").
The Reorganization was effected by merging PKOH Merger Corp., an Ohio
corporation ("Merger Corp.") with and into Park-Ohio (the "Merger") pursuant to
an Agreement of Merger dated February 20, 1998 by and among the Registrant,
Park-Ohio and Merger Corp. ("Merger Agreement"). Upon consummation of the
Merger, (i) all of the shares of Park-Ohio's common stock, $1.00 par value per
share ("Park-Ohio Common Stock"), issued and outstanding immediately prior to
the Merger were converted on a share-for-share basis into an equal number of
shares of the Registrant's common stock, $1.00 par value per share ("Holdings
Common Stock"), (ii) all of the shares of Merger Corp.'s common stock issued and
outstanding immediately prior to the Merger were converted into 100 shares of
Park-Ohio Common Stock and (iii) all of the shares of Holdings Common Stock
issued and outstanding immediately prior to the Merger were canceled. Park-Ohio
is now a wholly-owned subsidiary of the Registrant.
In connection with the Reorganization, each of the Park-Ohio
Industries, Inc. Amended and Restated 1992 Stock Option Plan and the Park-Ohio
Industries, Inc. 1996 Non-Employee Director Stock Option Plan was amended (each,
as amended to date, a "Plan") to provide for the use of Holdings Common Stock
(instead of Park-Ohio Common Stock) in the administration of such Plan and to
provide for the assumption by the Registrant of all of the obligations of
Park-Ohio under such Plan.
In accordance with Rule 414 under the Securities Act, the Registrant,
as the successor issuer, hereby expressly adopts this registration statement of
Park-Ohio as its own for all purposes of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Park-Ohio and the Registrant with the
Commission pursuant to the Exchange Act are incorporated herein by reference and
made a part hereof:
1. Park-Ohio's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2
<PAGE> 3
2. Park-Ohio's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
3. Park-Ohio's Current Reports on Form 8-K filed January 14, 1998
and April 23, 1998, respectively.
4. The description of the Holdings Common Stock contained in the
Registrant's Registration Statement on Form S-4 filed with the
Commission under the Securities Act (Registration No. 333-46931);
declared effective April 24, 1998 (the "Registration Statement").
5. Registrant's Current Report on Form 8-K filed June 16, 1998.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 34 of the Registrant's Regulations, as currently in effect
("Section 34"), provides that the Registrant will indemnify any director or
officer or any former director or officer of the Registrant or any person who is
or has served at the request of the Registrant as a director, officer or trustee
of another corporation, joint venture, trust or other enterprise (and his heirs,
executors and administrators) against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative to the
full extent and according to the procedures and requirements set forth in the
Ohio General Corporation Law as the same may be in effect from time to time.
Section 34 further provides that the indemnification provided for
therein shall not be deemed to restrict the right of the Registrant to indemnify
employees, agents and others as permitted by such Law, and shall be in addition
to any other rights granted to
3
<PAGE> 4
those seeking indemnification under the Articles or Incorporation or these
Regulations or any Indemnification Agreement (as hereinafter defined), 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.
In addition, Section 34 provides that, without derogation to the power
of the Registrant from time to time to enter into, or assume the obligations of
any affiliate of the Registrant under, any agreement granting rights of
indemnification to any person or entity ("Indemnification Agreement"), the
Registrant is expressly authorized to assume the obligations of Park-Ohio under
any Indemnification Agreement existing on the date of the initial adoption of
the Registrant's Regulations, and any obligations so assumed will be binding
upon the Registrant with the same force and effect as if the Registrant had been
an original party to such Indemnification Agreement. Pursuant to the Merger
Agreement, the Registrant assumed Park-Ohio's obligations under all such
Indemnification Agreements, effective as of the consummation of the Merger. The
terms of such Indemnification Agreements are substantially the same as the terms
of the Indemnification Agreements that the Registrant has entered into with all
of its directors and certain of its officers, as described below.
Section 34 also authorizes the Registrant to 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 Registrant, or is or was
serving at the request of the Registrant as a director, trustee, officer,
employee or agent of another corporation, joint venture, trust or other
enterprise (and his heirs, executors and administrators), against any liability
asserted against him and incurred by him in such capacity, or arising out of his
status as such, regardless of whether the Registrant would have indemnified him
against such liability under any other provision of Section 34. It further
provides that insurance may be purchased from or maintained with a person in
which the Registrant has a financial interest.
Section 1701.13(E) of the Ohio General Corporation Law provides in
regard to indemnification of directors and officers as follows:
(1) A corporation may indemnify or agree to 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, other than
an action by or in the right of the corporation, 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, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal
4
<PAGE> 5
action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, by reason
of the fact that he is or was a director, officer, employee, member,
manager, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that,
the court of common pleas or the court in which such action or suit
was brought determines, upon application, that, despite the
adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as the court of common pleas or such other court shall
deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer,
employee, member, manager, or agent has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in division (E)(1) or (2)
of this section. Such determination shall be made as follows:
5
<PAGE> 6
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be indemnified
within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1)(2) of this
section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten
days after receipt of such notification, such person shall have the
right to petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the
regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director
in an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section is pursuant to section 1701.95 of the Revised
Code, expenses, including attorney's fees, incurred by a director in
defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding upon receipt of an undertaking by
or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the corporation or undertaken
with reckless disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the
6
<PAGE> 7
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding, as authorized by the directors in
the specific case, upon receipt of an undertaking by or on behalf of
the director, trustee, officer, member, manager, employee, or agent to
repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A 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, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a 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 section. Insurance may be
purchased from or maintained with a person in which the corporation
has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving bank, so that any person who is or was a director,
officer, employee, trustee, member, manager, or agent of such a
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, shall stand in
the same position under this section with respect to the new or
surviving bank as he would if he had served the new or surviving bank
in the same capacity.
7
<PAGE> 8
In addition to assuming the Indemnification Agreements of Park-Ohio
described above, the Registrant has entered into Indemnification Agreements with
each of its directors and certain of its officers ("Indemnitees"). Pursuant to
each such Indemnification Agreement, the Registrant must indemnify the
Indemnitee with respect to his activities as a director or officer of the
Registrant and/or as a person who is serving or has served on behalf of the
Registrant ("Representative") as a director, officer or trustee of another
corporation, joint venture, trust or other enterprise, domestic or foreign, in
which the Registrant has a direct or indirect ownership interest against
expenses (including, without limitation, attorneys' fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred by him ("Expenses")
in connection with any claim against the Indemnitee which is the subject of any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise and whether formal or
informal (a "Proceeding"), to which the Indemnitee was, is or is threatened to
be made a party by reason of facts which include the Indemnitee's being or
having been such a director, officer or Representative, to the extent of the
highest and most advantageous to the Indemnitee, as determined by the
Indemnitee, of one or any combination of the following:
(a) The benefits provided by the Registrant's Regulations as of the
date of the Indemnification Agreement;
(b) The benefits provided by the Articles of Incorporation, Regulations
or By-laws or their equivalent of the Registrant in effect at the time Expenses
are incurred by the Indemnitee;
(c) The benefits allowable under Ohio law in effect as of the date of
the Indemnification Agreement;
(d) The benefits allowable under the law of the jurisdiction under
which the Registrant exists at the time Expenses are incurred by the Indemnitee;
(e) The benefits available under liability insurance obtained by the
Registrant;
(f) The benefits which would have been available to the Indemnitee
under his Executive Liability Insurance Policy; and
(g) Such other benefits as are or may be otherwise available to the
Indemnitee.
The Indemnitee Agreements provide for the advancement of Expenses to
the Indemnitee if the Indemnitee provides the Registrant with a written
undertaking that (i) the Indemnitee has notified the Registrant of any
Proceeding; (ii) the Indemnitee believes he should prevail in the Proceeding and
(iii) that the Indemnitee will reimburse the Registrant for all Expenses if it
is determined that the Indemnitee is not entitled to indemnification.
8
<PAGE> 9
The Registrant also maintains directors' and officers' liability
insurance, pursuant to which directors and officers of the Registrant are
insured against certain liabilities, including certain liabilities under the
1933 Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as a part of or
incorporated by reference in this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C> <C>
4.1 Agreement of Merger dated as of February 20, 1998 by and among the
Registrant, Park-Ohio and Merger Corp. (Incorporated by reference to Exhibit
2 to the Registration Statement)
4.2 Amended and Restated Articles of Incorporation of the Registrant
4.3 Regulations of the Registrant (Incorporated by reference to Exhibit 3.2 to
the Registration Statement)
4.4 Specimen Stock Certificate of the Registrant
5 Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality
15 Letter from Ernst & Young LLP regarding unaudited interim financial
information
23.1 Consent of Ernst & Young LLP
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (contained in opinion filed as
Exhibit 5)
24 Power of Attorney
99.1 Park-Ohio Holdings Corp. Amended and Restated 1992 Stock Option Plan
99.2 Park-Ohio Holdings Corp. 1996 Non-Employee Director Stock Option Plan
</TABLE>
9
<PAGE> 10
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement: (a) to include any prospectus
required by section 10(a)(3) of the Securities Act of
1933; (b) to reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in the volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum offering price set forth in
the "Calculation of Registration Fee" table in the
effective Registration Statement; (c) to include any
material information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) of this section
do not apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934
10
<PAGE> 11
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland, State of Ohio, on the 15th day of
June, 1998.
PARK-OHIO HOLDINGS CORP.
By:/s/ Ronald J. Cozean
--------------------------------
Ronald J. Cozean, Secretary
11
<PAGE> 12
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to Registration Statement has been signed by the following persons in
the capacities and on June 15, 1998.
*
- ----------------------------------------
Edward F. Crawford
Chairman, President and Chief Executive Officer
(Principal Executive Officer)
*
James S. Walker
- ----------------------------------------
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
*
- ----------------------------------------
Lewis E. Hatch, Jr.
Director
*
- ----------------------------------------
Thomas E. McGinty
Director
*
- ----------------------------------------
Lawrence O. Selhorst
Director
*
James W. Wert
- ----------------------------------------
Director
*
Matthew V. Crawford
- ----------------------------------------
Director
*
Felix J. Tarorick
- ----------------------------------------
Director
*
Kevin R. Greene
- ----------------------------------------
Director
* The undersigned pursuant to a Power of Attorney executed by each of
the Directors and Officers identified above and filed with the
Securities and Exchange Commission, by signing his name hereto, does
hereby sign and execute this
12
<PAGE> 13
Registration Statement on behalf of each of the persons noted above,
in the capacities indicated.
By: /s/ Ronald J. Cozean June 15, 1998
---------------------------------------- -------------
Ronald J. Cozean, Attorney-in-Fact Date
13
<PAGE> 14
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C> <C>
4.1 Agreement of Merger dated as of February 20, 1998 by and among
the Registrant, Park-Ohio and Merger Corp. (Incorporated by
reference to Exhibit 2 to the Registration Statement)
4.2 Amended and Restated Articles of Incorporation of the Registrant
4.3 Regulations of the Registrant (Incorporated by reference to
Exhibit 3.2 to the Registration Statement)
4.4 Specimen Stock Certificate of the Registrant
5 Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality
15 Letter from Ernst & Young LLP regarding unaudited interim
financial information
23.1 Consent of Ernst & Young LLP
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (contained in
opinion filed as Exhibit 5)
24 Power of Attorney
99.1 Park-Ohio Holdings Corp. Amended and Restated 1992 Stock Option
Plan
99.2 Park-Ohio Holdings Corp. 1996 Non-Employee Director Stock Option
Plan
</TABLE>
14
<PAGE> 1
EXHIBIT 4.2
CERTIFICATE
OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PKOH HOLDING CORP.
Edward F. Crawford, who is Chairman of the Board of Directors, President
and Chief Executive Officer, and Ronald J. Cozean, who is Secretary, of the
above-named Ohio corporation for profit with its principal location at
Cleveland, Ohio (the "Corporation") do hereby certify that the following Amended
and Restated Articles of Incorporation were adopted by the Board of Directors of
the Corporation to supersede and take the place of the existing Articles of
Incorporation at a meeting duly called on May 28, 1998, and further that such
Amended and Restated Articles of Incorporation were approved by the sole
shareholder of the Corporation in a writing signed by such shareholder and dated
May 28, 1998, all in accordance with the applicable provisions of the Ohio
Revised Code, including Section 1701.69 thereof.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PARK-OHIO HOLDINGS CORP.
FIRST: The name of the Corporation shall be "Park-Ohio Holdings Corp."
SECOND: The place in the State of Ohio where the principal office of the
Corporation will be located is Cleveland, Ohio, in Cuyahoga County, or such
other location as the Board of Directors may from time to time determine.
THIRD: The purposes for which the Corporation is formed are (i) 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, as now in
effect or hereinafter amended, in furtherance of such long-term plans and
strategies as the Board of Directors may from time to time establish for the
Corporation and (ii) to preserve for the Corporation, its shareholders and such
other constituencies as the Board of Directors may from time to time identify,
the benefits expected to be derived from such long term-plans and strategies.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty million six hundred
thirty-two thousand four hundred seventy (40,632,470), all of a par value of $1
per share, divided into two classes as follows: 632,470 shares of Serial
Preferred Stock (hereinafter called the "Serial Stock"); and 40,000,000 shares
of Common Stock (hereinafter called the "Common Stock").
The voting powers and such designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions of each class of stock which are fixed by these
Amended and Restated Articles of Incorporation, and the express grant of
authority to the Board of Directors to fix by resolutions the voting powers,
designations, preferences and relative, participating, optional or other rights,
if any, or the qualifications, limitations or restrictions, if any, of the
Serial Stock which are not fixed by these Amended and Restated Articles of
Incorporation, are as follows:
SECTION 1. PROVISIONS APPLICABLE ONLY TO THE SERIAL STOCK
A. The Serial Stock may be issued from time to time in any amount, not
exceeding in the aggregate (including all shares of any and all series thereof
theretofore issued and not theretofore retired) the total number of shares of
the Serial Stock hereinabove authorized, as Serial Stock of one or more series,
as hereinafter provided. All shares of any one series of the Serial Stock shall
be identical in all respects, each series thereof shall be distinctively
designated by letter or descriptive words, and, except as permitted by the
<PAGE> 2
provisions of this Article FOURTH, all series of the Serial Stock shall rank
equally and be identical in all respects.
B. Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Serial Stock as Serial Stock of any series and in
connection with the creation of such series to fix by the resolution or
resolutions providing for the issue of shares thereof the voting powers and
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions of such series, to the
fullest extent now or hereafter permitted by the laws of the State of Ohio, in
respect of the matters set forth in the following subdivisions (1) to (7),
inclusive:
(1) The designation of such series;
(2) The voting powers, if any, of the holders of Serial Stock of such
series;
(3) The rate and the times and conditions upon which the holders of
Serial Stock of such series shall be entitled to receive dividends, and
whether such dividends shall be cumulative or non-cumulative;
(4) The price or prices and the time or times and the manner in which
the Serial Stock of such series shall be redeemable, if such Serial Stock
is made redeemable;
(5) Whether or not the shares of such series shall be entitled to the
benefit of a sinking fund or purchase fund to be applied to the redemption
or purchase of such series and, if so entitled, the amount of such fund and
the manner of its application;
(6) Whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any
other series of the same or any other class of the Corporation or any other
security, and, if so convertible or exchangeable, the conversion price or
prices or rate or rates, or the rate or rates of exchange, and the
adjustments, if any, in the price or prices or rate or rates at which such
conversion or exchange may be made; and
(7) Any other designations, preferences and relative participating, or
other special rights, and qualifications, limitations or restrictions
thereof, so far as they are not inconsistent with the provisions of these
Amended and Restated Articles of Incorporation, as from time to time
amended.
C. Shares of any series of Serial Stock which have been issued and
reacquired in any manner by the Corporation (excluding, until the Corporation
elects to retire them, shares which are held as treasury shares but including
shares redeemed, shares purchased and retired, whether through the operation of
a retirement or purchase fund or otherwise, and shares which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock of any
other class or classes) shall have the status of authorized and unissued shares
of Serial Stock and may be reissued as a part of the series of which they were
originally a part or may be reissued as part of a new series of Serial Stock to
be created by resolution or resolutions of the Board of Directors or as part of
any other series of Serial Stock, all subject to the conditions or restrictions
on issuance set forth herein or in any resolution or resolutions adopted by the
Board of Directors providing for the issue of any series of Serial Stock.
SECTION 2. PROVISIONS APPLICABLE TO ALL CLASSES OF STOCK
A. Except to the extent that the resolution or resolutions providing for
the issuance of a series of Serial Stock may otherwise provide with respect to
such series, the preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions of the Serial
Stock of all series are as follows:
(1) Out of the unreserved and unrestricted surplus of the Corporation
legally available for dividends, the holders of Serial Stock shall be
entitled to receive, when and as declared by the Board of Directors,
dividends at the rate per annum determined as in this Article FOURTH,
provided therefor, and no more, payable quarterly in each year on such
dates as may be fixed as in this Article FOURTH provided therefor to
holders of record on the respective dates not exceeding forty days
preceding such dividend payment dates as may be determined by the Board of
Directors in advance of the payment of each such dividend (each such
payment day being hereinafter called a dividend date and each quarterly
2
<PAGE> 3
period ending with a dividend date being hereinafter called a dividend
period), before any dividends (other than dividends payable in stock
ranking junior to Serial Stock) on any class or classes of stock of the
Corporation ranking junior to Serial Stock as to dividends or on
liquidation shall be declared or paid or set apart for payment. With
respect to each issue of Serial Stock on which dividends are cumulative,
such dividends shall accrue and be cumulative from the "Date of
Cumulation." The term "Date of Cumulation" as used in this Section 2A.(1)
with reference to the Serial Stock shall be deemed to mean the date on
which shares of the Serial Stock of such series are first issued. In the
event of the issue of additional shares of Serial Stock of any then
existing series, all dividends paid on the Serial Stock of such series
prior to the issue of such additional shares, and all dividends declared
and payable to holders of record of the Serial Stock of such series on any
date prior to the issue of such additional shares, shall be deemed to have
been paid on such additional shares. No dividends shall be declared on any
issue of Serial Stock in respect of any dividend period unless there shall
likewise be or have been declared on all shares of Serial Stock of each
other issue at the time outstanding like dividends for all dividend periods
coinciding with or ending before such dividend period, ratably in
proportion to the respective annual dividend rates per annum fixed therefor
as hereinbefore provided. Accruals of dividends shall not bear interest.
(2) The Serial Stock of all issues shall be preferred over the Common
Stock as to assets in the event of any liquidation or dissolution or
winding up of the Corporation, and in that event the holders of the Serial
Stock of each issue shall be entitled to receive, out of the assets of the
Corporation available for distribution to its shareholders the amount
payable upon such liquidation or dissolution or winding up as fixed by the
Board of Directors, plus an amount equal to all dividends accrued and
unpaid thereon to the date of final distribution to such holders, before
any distribution of the assets shall be made to the holders of the Common
Stock; and, if in the event of any such liquidation or dissolution or
winding up of the Corporation, the holders of all issues of the Serial
Stock shall have received all the amounts to which they shall be entitled
as aforesaid, the holders of the Common Stock shall be entitled, to the
exclusion of the holders of the Serial Stock, to share ratably in all the
assets of the Corporation available for distribution to the shareholders
then remaining according to the number of shares of the Common Stock held
by them respectively. If, upon any liquidation or dissolution or winding up
of the Corporation, the amounts payable on or with respect to the Serial
Stock are not paid in full, the holders of shares of the Serial Stock of
all issues shall share ratably in any distribution of assets according to
the respective amounts which would be payable in respect of the shares held
by them upon such distribution if all amounts payable on or with respect to
the Serial Stock of all series were paid in full. For the purposes of this
Section 2A.(2), the voluntary sale, lease, exchange or transfer (for cash,
shares of stock, securities, or other consideration) of all or
substantially all of its property or assets to, or a consolidation or
merger of the Corporation with, one or more corporations shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
(3) The shares of Serial Stock, or any series or issue thereof, or any
part of any series or issue thereof, which are outstanding and which are by
resolution or resolutions of the Board of Directors creating any series of
Serial Stock, then redeemable, may be redeemed by the Corporation at its
election expressed by resolution of the Board of Directors, upon not less
than thirty (30) nor more than sixty (60) days' previous notice to the
holders of record of the Serial Stock to be redeemed, given by mail or by
publication in such manner as may be prescribed by resolution of the Board
of Directors, at the applicable redemption price, determined as provided in
this Article FOURTH, of the Serial Stock to be redeemed. If less than all
the outstanding Serial Stock of any issue or series is to be redeemed, the
redemption may be made either by lot or pro rata as may be prescribed by
resolution of the Board of Directors. From and after the date fixed in any
such notice as the date of redemption (unless default shall be made by the
Corporation in providing moneys for the payment of the redemption price
pursuant to such notice), or, if the Corporation shall so elect, from and
after a date, prior to the date fixed as the date of redemption, on which
the Corporation shall provide moneys for the payment of the redemption
price by depositing the amount thereof for the account of the holders of
the Serial Stock entitled thereto with a bank or trust company doing
business in the City of Chicago, Illinois, or in the City of New York, New
York, or in the City of Cleveland, Ohio, and having a capital and surplus
of at least fifty million dollars ($50,000,000),
3
<PAGE> 4
pursuant to notice of such election included in the notice of redemption
specifying the date on which such deposit will be made, all dividends on
the Serial Stock called for redemption shall cease to accrue and all rights
of the holders thereof as shareholders of the Corporation, except the right
to receive the redemption price as hereinafter provided and, in the case of
such deposit, any conversion rights not theretofore expired, shall cease
and terminate. After the deposit of such amount with such bank or trust
company, the respective holders of record of the Serial Stock to be
redeemed shall be entitled to receive the redemption price at any time upon
actual delivery to such bank or trust company of certificates for the
number of shares to be redeemed, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in
blank. Any moneys so deposited which shall remain unclaimed by the holders
of such Serial Stock at the end of six (6) years after the redemption date,
together with any interest thereon which shall be allowed by the bank or
trust company with which the deposit shall have been made, shall be repaid
by such bank or trust company to the Corporation upon its request expressed
in a resolution of its Board of Directors, free of any trust theretofore
impressed upon them by the Corporation.
(4) If at the time of any annual meeting of shareholders of the
Corporation for the election of directors a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, shall exist, the holders of the Serial Stock voting separately as
a class and without regard to series, shall have the right to elect two
members of the Board of Directors; and the holders of the Common Stock
shall not be entitled to vote in the election of the directors of the
Corporation to be elected by the holders of Serial Stock, as provided
above. Whenever a default in preference dividends shall commence to exist,
the Corporation, upon the written request of the holders of five percent
(5%) or more of the outstanding shares of Serial Stock, shall call a
special meeting of the holders of the Serial Stock, such special meeting or
meetings to be held within one hundred twenty (120) days after the date on
which such request is received by the Corporation, for the purpose of
enabling such holders to elect members of the Board of Directors as
provided above; provided, however, that such special meeting or meetings
need not be called if an annual meeting of shareholders of the Corporation
for the election of directors shall be scheduled to be held within such 120
days. Prior to any such special or annual meeting or meetings, the number
of directors of the Corporation shall be increased to the extent necessary
to provide as additional places on the Board of Directors the directorships
to be filled by the directors to be elected thereat. Any director elected
as aforesaid by the holders of shares of the Serial Stock shall cease to
serve as such director whenever a default in preference dividends shall
cease to exist. If, prior to the end of the term of any director elected as
aforesaid by the holders of shares of Serial Stock, or elected by the
holders of the Serial Stock and Common Stock, a vacancy in the office of
such director shall occur by reason of death, resignation, removal or
disability, or for any other cause, such vacancy shall be filled for the
unexpired term in the manner provided in these Amended and Restated
Articles of Incorporation and the Regulations of the Corporation; provided,
however, that if such vacancy shall be filled by election by the
shareholders at a meeting thereof, the right to fill such vacancy shall be
vested in the holders of that class of stock or series thereof which
elected the director the vacancy in the office of whom is so to be filled,
unless, in any such case, no default in preference dividends shall exist at
the time of such meeting. For the purposes of this Section 2A.(4), a
"default in preference dividends" shall be deemed to have occurred whenever
the amount of cumulative dividends accrued and unpaid upon any series of
the Serial Stock and the amount of non-cumulative dividends unpaid upon any
series of the Serial Stock shall be equivalent to six (6) full
quarter-yearly dividends or more, and, having so occurred, such default in
preference dividends shall be deemed to exist thereafter until, but only
until, all cumulative dividends accrued and unpaid on all shares of the
Serial Stock then outstanding, of each and every class and series, shall
have been paid in full, or declared and funds set aside for their payment,
and until non-cumulative dividends on all shares of the Serial Stock then
outstanding, of each and every series, shall have been paid regularly for
at least one year. Nothing herein contained shall be deemed to prevent an
increase in the number of directors of the Corporation pursuant to its
Regulations so as to provide as additional places on the Board of Directors
the directorships to be filled by the directors so to be elected by the
holders of the Serial Stock or of any class or series thereof, or to
prevent any other change in the number of directors of the Corporation. At
any meeting held for the purpose of electing directors at which the holders
of the
4
<PAGE> 5
Serial Stock shall have the special right, voting separately as a group, to
elect directors as provided in this Section 2A.(4), the presence, in person
or by proxy, of the holders of one-third of the aggregate number of shares
of the Serial Stock of all series at the time outstanding shall be required
to constitute a quorum of such group for the election of any director by
the holders of the Serial Stock as a group. At any such meeting or
adjournment thereof, (a) the absence of a quorum of the holders of the
Serial Stock shall not prevent the election of directors other than those
to be elected by the holders of the Serial Stock voting as a group and the
absence of a quorum for the election of such other directors shall not
prevent the election of the directors to be elected by the holders of the
Serial Stock voting as a group, and (b) in the absence of either or both
such quorums, a majority of the holders present in person or by proxy of
the stock or stocks which lack a quorum shall have power to adjourn the
meeting for the election of directors which they are entitled to elect from
time to time without notice other than announcement at the meeting until a
quorum shall be present.
(5) So long as any shares of the Serial Stock of any series shall be
outstanding, (a) the Corporation shall not, without the affirmative vote or
written consent of the holders of at least two-thirds of the aggregate
number of shares of the Serial Stock of all series at the time outstanding,
considered as a single class without regard to series,
(i) alter or change the voting powers, designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions of the Serial Stock as
provided in these Amended and Restated Articles of Incorporation or by
the resolution or resolutions so fixing the same, so as to affect the
Serial Stock adversely, or
(ii) authorize or create any class of stock ranking, either as to
dividends or upon liquidation, prior to the Serial Stock; or
(b) the Corporation shall not, without the affirmative vote or written
consent of the holders of a majority of the aggregate number of shares of
the Serial Stock of all series at the time outstanding, considered as a
single class, increase the authorized amount of Serial Stock or authorize
or create any class ranking, either as to dividends or upon liquidation, on
a parity with Serial Stock; or (c) the Corporation shall not, without the
affirmative vote or written consent of the holders of at least two-thirds
of the aggregate number of shares of the Serial Stock of any series at the
time outstanding, the holders of such series consenting or voting
separately as a series, alter or change the voting powers, designations,
preferences and relative, participating, optional or other special rights
and qualifications, limitations or restrictions specifically applicable to
such series, as provided in these Amended and Restated Articles of
Incorporation or in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series, so as to affect such
series adversely; or (d) the Corporation shall not (i) declare, or pay, or
set apart for payment, any dividends (other than dividends payable in stock
ranking junior to the Serial Stock) or make any distribution, on any class
or classes of stock of the Corporation ranking junior to the Serial Stock
in any respect, or (ii) redeem, purchase or otherwise acquire, or permit
any subsidiary to purchase or otherwise acquire, any shares of any such
junior class, if at the time of making such declaration, payment,
distribution, redemption, purchase or acquisition, the Corporation shall be
in default with respect to any dividend payable on, or any obligation to
retire, shares of Serial 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 sale of, other shares of stock of any junior
class; provided, however, that any vote or consent required by Section
2A.(5)(a)(i) above may be given and made effective by the filing of an
appropriate amendment of these Amended and Restated Articles of
Incorporation without obtaining the vote or consent of the holders of the
Common Stock, the right to give such vote or consent being expressly waived
by all holders of such Common Stock unless the action to be taken would
substantially adversely affect the rights or powers of the Common Stock;
and provided, further, that any vote or consent required by Section
2A.(5)(c) above may be given and made effective by the filing of an
appropriate amendment of these Amended and Restated Articles of
Incorporation without obtaining the vote or consent of the holders of any
other series of the Serial Stock or of the holders of the Common Stock, the
right to give such vote or consent being expressly waived by all holders of
such other series of Serial Stock and
5
<PAGE> 6
Common Stock, unless the action to be taken would substantially adversely
affect the rights or powers of such other series of Serial Stock or Common
Stock, as the case may be.
(6) If at any time the Corporation shall have failed to pay dividends
in full on the Serial Stock, thereafter and until dividends in full,
including all accrued and unpaid dividends on the Serial Stock outstanding,
shall have been declared and set apart for payment or paid (a) the
Corporation shall not, without the affirmative vote or written consent of
the holders of at least two-thirds of the aggregate number of shares of the
Serial Stock of all series at the time outstanding, redeem less than all of
the Serial Stock at such time outstanding other than in accordance with
Section 2A.(7), and (b) neither the Corporation nor any subsidiary shall
purchase any Serial 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 Serial Stock of all series upon such terms as the Board of
Directors, in its sole discretion after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series, shall determine (which determination shall be final and
conclusive) will result in fair and equitable treatment among the
respective series; provided, that (i) unless prohibited by the provisions
applicable to any series, the Corporation, to meet the requirements of any
retirement or sinking fund provisions with respect to any series, may use
shares of such series acquired by it prior to such failure and then held by
it as treasury stock and (ii) nothing shall prevent the Corporation from
completing the purchase or redemption of shares of Serial Stock for which a
purchase contract was entered into for any retirement or sinking fund
purposes, or the notice of redemption of which was initially published,
prior to such failure.
(7) If in any case the amounts payable with respect to any obligations
to retire shares of the Serial Stock are not paid in full in the case of
all series as to which such obligations exist, the number of shares of the
various series to be retired shall be in proportion to the respective
amounts which would be payable on account of such obligations if all
amounts which would be payable on account of such obligations were
discharged in full.
B. For the purposes of this Article FOURTH and of any resolution or
resolutions of the Board of Directors adopted pursuant to this Article FOURTH or
of any certificate filed with the Secretary of State of Ohio (unless otherwise
provided in any such resolution or certificate):
(1) The term "outstanding," when used in reference to shares of stock,
shall mean issued shares, excluding shares held by the Corporation or a
subsidiary and shares called for redemption, funds for the redemption of
which shall have been deposited in trust;
(2) The amount of dividends "accrued and unpaid" on any shares of
Serial Stock of any series as at any quarterly dividend date shall be
deemed (whether or not in any dividend period in respect of which such term
is used there shall have been unreserved and unrestricted surplus legally
available for the payment of dividends) to be the amount of any unpaid
dividends accumulated thereon to and including such quarterly dividend
date, whether or not earned or declared, and the amount of dividends
"accrued and unpaid" on any shares of Serial Stock of any series as at any
date other than a quarterly dividend date shall be calculated as the amount
of any unpaid dividends accumulated thereon to and including the last
preceding quarterly dividend date, whether or not earned or declared, plus
an amount calculated on the basis of the annual dividend rate fixed for the
shares of such series for the period after such last preceding quarterly
dividend date to, and including, the date as of which the calculation is
made, based on a 360-day year of twelve 30-day months;
(3) Any class or classes of stock of the Corporation shall be deemed
to rank:
(a) prior to the Serial Stock either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of any Serial Stock;
(b) on a parity with the Serial Stock either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment
dates, or redemption or liquidation prices per share thereof be
different from those of any Serial Stock, if the holders of such class
or classes of stock shall be
6
<PAGE> 7
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation prices,
without preference or priority one over the other as between the holders
of such class or classes of stock and the holders of any Serial Stock;
and
(c) junior to the Serial Stock if the rights of the holders of such
class or classes shall be subject or subordinate to the rights of the
holders of the Serial Stock in respect of either the receipt of
dividends or the amounts distributable upon liquidation, dissolution or
winding up.
C. Except as otherwise provided by law or by these Amended and Restated
Articles of Incorporation and except to the extent that the resolution or
resolutions of the Board of Directors providing for the issuance of a series of
Serial Stock may otherwise provide with respect to such series, the holder (or
holders) of each outstanding share of stock of the Corporation, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders or submitted to shareholders for their consent without a
meeting.
D. No shareholder of the Corporation shall by reason of his holding shares
of any class have any preemptive or preferential right to purchase or subscribe
to any shares of any class of the Corporation now or hereafter to be authorized,
or any notes, debentures, bonds, or other securities convertible into or
carrying options or warrants to purchase shares of any class, now or hereafter
to be authorized, whether or not the issuance of any such shares, or such notes,
debentures, bonds or other securities, would adversely affect the dividend or
voting rights of such shareholder, other than such rights, if any, as the Board
of Directors, in its discretion from time to time may grant and at such price as
the Board of Directors in its discretion may fix; and the Board of Directors may
issue shares of any class of the Corporation, or any notes, debentures, bonds,
or other securities convertible into or carrying options or warrants to purchase
shares of any class, without offering any such shares of any class, either in
whole or in part, to the existing shareholders of any class.
FIFTH:
SECTION 1. SPECIAL VOTE FOR CERTAIN BUSINESS COMBINATIONS. Except as set
forth in Section 3 of this Article FIFTH, the affirmative vote of the holders of
eighty percent (80%) of all outstanding shares of the Corporation entitled to
vote in elections of directors, considered for the purposes of this Article
FIFTH and Article SIXTH hereof as one class (such shares hereinafter in this
Article FIFTH, in Article SIXTH and Article EIGHTH hereof referred to as "Voting
Shares"), shall be required:
A. to adopt an agreement for the merger or consolidation of the
Corporation with or into any other entity; or
B. to authorize the sale, lease, exchange, transfer or other
disposition of all or substantially all of the assets of the Corporation,
to another corporation, person or entity; or
C. to authorize any purchase by the Corporation of any assets or
securities of any other corporation, person or entity in exchange, in whole
or in part, for Voting Shares of the Corporation;
if, in any such case referred to in A, B, or C above, as of the record date for
the determination of shareholders entitled to notice thereof and to vote
thereon, such other corporation, person or entity is the beneficial owner,
directly or indirectly, of more than five percent (5%) of the Voting Shares of
the Corporation. Such affirmative vote shall be in addition to any vote of the
shareholders of the Corporation otherwise required.
SECTION 2. BENEFICIAL OWNERSHIP. For the purpose of determining the number
of Voting Shares of the Corporation beneficially owned by any corporation,
person or other entity (but not for the purpose of determining the number of
outstanding Voting Shares) there shall be included, in addition to the
outstanding shares beneficially owned, directly or indirectly, by such
corporation, person or entity, the Voting Shares of the Corporation which such
corporation, person or other entity, or any affiliate or associate thereof, owns
or has the right to acquire presently or in the future pursuant to any agreement
or upon exercise of conversion rights, warrants, options, or otherwise, or which
are the subject of any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of Voting Shares of the Corporation.
7
<PAGE> 8
The terms "affiliate" and "associate" as herein used shall have the same meaning
as is given to those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended.
SECTION 3. EXCLUDED TRANSACTIONS. The provisions of the foregoing Sections
1 and 2 of this Article FIFTH shall not be applicable to:
A. any transaction which but for said Sections would not require the
vote or consent of shareholders of the Corporation; or
B. any transaction with another person or entity if prior to such
transaction and prior to the time that such other person or entity shall
have become the beneficial owner, as defined in Section 2 above, of more
than five percent (5%) of the Voting Shares of the Corporation, the Board
of Directors of the Corporation, including the positive vote of all
directors of the Corporation who are neither "associates" nor "affiliates"
(as such terms are defined under the federal securities laws) of such other
person or entity, shall have approved: (i) the transaction or the entry by
the Corporation into a written understanding with such other person or
entity substantially consistent with such transaction; or (ii) the
acquisition by such other person or entity of beneficial ownership of more
than five percent (5%) of the Voting Shares of the Corporation; or
C. any transaction with a corporation or other entity a majority of
the voting shares of which are owned of record or beneficially by the
Corporation.
SECTION 4. DETERMINATION OF BENEFICIAL OWNERSHIP AND OTHER MATTERS. The
determination of the Board of Directors of the Corporation, based on information
known to them and made in good faith, shall be conclusive as to whether any
corporation, person or entity beneficially owns more than five percent (5%) of
the Voting Shares of the Corporation, whether a corporation, person or entity is
an affiliate or associate of another, or whether a written understanding entered
into by the Corporation is substantially consistent with a transaction.
SECTION 5. AMENDMENTS TO ARTICLE FIFTH. Any amendment to the Amended and
Restated Articles of Incorporation of the Corporation whereby this Article FIFTH
is to be amended, altered or repealed or any provisions inconsistent with this
Article FIFTH are to be adopted shall require the affirmative vote or consent of
the holders of at least eighty percent (80%) of the Voting Shares of the
Corporation.
SIXTH: No Person shall make a Control Share Acquisition without the prior
authorization of the Corporation's shareholders.
SECTION 1. PROCEDURE. In order to obtain authorization of a Control Share
Acquisition by the Corporation's shareholders, a Person shall deliver a notice
(the "Notice") to the Corporation at its principal place of business that sets
forth all of the following information:
A. The identity of the Person who is giving the Notice;
B. A statement that the Notice is given pursuant to this Article
SIXTH;
C. The number and class of shares of the Corporation owned, directly
or indirectly, by the Person who gives the Notice;
D. The range of voting power under which the proposed Control Share
Acquisition would, if consummated, fall;
E. A description in reasonable detail of the terms of the proposed
Control Share Acquisition; and
F. Reasonable evidence that the proposed Control Share Acquisition, if
consummated, would not be contrary to law and that the Person who is giving
the Notice has the financial capacity to make the proposed Control Share
Acquisition.
SECTION 2. CALL OF SPECIAL MEETING OF SHAREHOLDERS. The Board of Directors
of the Corporation shall, within ten days after receipt of such Notice by the
Corporation, call a special meeting of shareholders to be held not later than
fifty (50) days after receipt of the Notice by the Corporation, unless the
8
<PAGE> 9
Person who delivered the Notice agrees to a later date, to consider the proposed
Control Share Acquisition; provided that the Board of Directors shall have no
obligation to call such meeting if they make a determination within ten days
after receipt of the Notice (i) that the Notice was not given in good faith,
(ii) that the proposed Control Share Acquisition would not be in the best
interests of the Corporation or (iii) that the proposed Control Share
Acquisition could not be consummated for financial or legal reasons. The Board
of Directors may adjourn such meeting if, prior to such meeting, the Corporation
has received a Notice from any other Person and the Board of Directors has
determined that the Control Share Acquisition proposed by such other Person or a
merger, consolidation or sale of assets of the Corporation should be presented
to shareholders at an adjourned meeting or at a special meeting held at a later
date.
For purposes of this Section 2, a director, in determining whether the
proposed Control Share Acquisition would be in the best interests of the
Corporation, shall consider the interests of the Corporation's shareholders and,
in his discretion, may consider any of the following: the interests of the
Corporation's employees, suppliers, creditors and customers; the economy of the
state and nation; community and societal considerations; and the long term as
well as short term interests of the Corporation and its shareholders, including
the possibility that these interests may be best served by the continued
independence of the Corporation.
For purposes of making a determination that a special meeting of
shareholders should not be called pursuant to this Section 2, no such
determination shall be deemed void or voidable with respect to the Corporation
merely because one or more of its directors or officers who participated in
making such determination may be deemed to be other than disinterested, if in
any such case the material facts of the relationship giving rise to a basis for
self-interest are known to the directors and the directors, in good faith
reasonably justified by the facts, make such determination by the affirmative
vote of a majority of the disinterested directors, even though the disinterested
directors constitute less than a quorum. For purposes of this paragraph,
"disinterested directors" shall mean directors whose material contacts with the
Corporation are limited principally to activities as a director or shareholder.
Persons who have substantial, recurring business or professional contacts with
the Corporation shall not be deemed to be "disinterested directors" for purposes
of this provision. A director shall not be deemed to be other than a
"disinterested director" merely because he would no longer be a director if the
proposed Control Share Acquisition were approved and consummated.
SECTION 3. NOTICE OF SPECIAL MEETING. The Corporation shall give notice of
such special meeting to all shareholders of record as of the record date set for
such meeting as promptly as practicable. Such notice shall include or be
accompanied by a copy of the Notice and by a statement of the Corporation,
authorized by the Board of Directors, of its position or recommendation, or that
it is taking no position or making no recommendation, with respect to the
proposed Control Share Acquisition.
SECTION 4. REQUIREMENTS FOR APPROVAL. The Person who delivered the Notice
may make the proposed Control Share Acquisition if both of the following occur:
(i) the shareholders of the Corporation authorize such acquisition at the
special meeting called by the Board of Directors at which a quorum is present
and held for that purpose by an affirmative vote of a majority of the Voting
Shares represented at such meeting in person or by proxy and by a majority of
the portion of such Voting Shares represented at such meeting in person or by
proxy excluding the votes of Interested Shares; and (ii) such acquisition is
consummated, in accordance with the terms so authorized, not later than 360 days
following shareholder authorization of the Control Share Acquisition.
SECTION 5. VIOLATIONS OF RESTRICTION. Shares issued or transferred to any
Person in violation of this Article SIXTH shall be valid only with respect to
such amount of shares as does not result in a violation of this Article SIXTH,
and such issuance or transfer shall be null and void with respect to the
remainder of such shares, any such remainder of shares being hereinafter called
"Excess Shares." If the last clause of the foregoing sentence is determined to
be invalid by virtue of any legal decision, statute, rule or regulation, the
Person who holds Excess Shares shall be conclusively deemed to have acted as an
agent on behalf of the Corporation in acquiring the Excess Shares and to hold
such Excess Shares on behalf of the Corporation. As the equivalent of treasury
securities for such purposes, the Excess Shares shall not be entitled to any
voting rights, shall not be considered to be outstanding for quorum or voting
purposes, and shall not be entitled to
9
<PAGE> 10
receive dividends, interest or any other distribution with respect to the Excess
Shares. Any person who receives dividends, interest or any other distribution in
respect to Excess Shares shall hold the same as agent for the Corporation and,
following a permitted transfer, for the transferee thereof. Notwithstanding the
foregoing, any holder of Excess Shares may transfer the same (together with any
distributions thereon) to any person who, following such transfer, would not own
shares in violation of this Article SIXTH. Upon such permitted transfer, the
Corporation shall pay or distribute to the transferee any distributions on the
Excess Shares not previously paid or distributed.
SECTION 6. DEFINITIONS. As used in this Article SIXTH:
A. "Person" includes, without limitation, an individual, a corporation
(whether nonprofit or for profit), a partnership, an unincorporated society
or association, and two or more persons having a joint or common interest.
B. (1) "Control Share Acquisition" means the acquisition, directly or
indirectly, by any Person, of shares of the Corporation that, when added to
all other shares of the Corporation in respect of which such Person may
exercise or direct the exercise of voting power as provided in this Section
6B.(1), would entitle such Person, immediately after such acquisition,
directly or indirectly, to exercise or direct the exercise of the voting
power of the Corporation in the election of directors within any of the
following ranges of such voting power:
(a) One-fifth or more but less than one-third of such voting power;
(b) One-third or more but less than a majority of such voting
power;
(c) A majority or more of such voting power.
A bank, broker, nominee, trustee, or other person who acquires shares
in the ordinary course of business for the benefit of others in good faith
and not for the purpose of circumventing this Article SIXTH shall, however,
be deemed to have voting power only of shares in respect of which such
person would be able to exercise or direct the exercise of votes without
further instruction from others at a meeting of shareholders called under
this Article SIXTH. For purposes of this Article SIXTH, the acquisition of
securities immediately convertible into shares of the Corporation with
voting power in the election of directors shall be treated as an
acquisition of such shares.
(2) The acquisition by any Person of any shares of the Corporation
does not constitute a Control Share Acquisition for the purpose of this
Article SIXTH if the acquisition is consummated in any of the following
circumstances:
(a) Pursuant to the Merger Agreement dated February 20, 1998 by and
among the Corporation, Park-Ohio Industries, Inc. and PKOH Merger Corp.;
(b) By underwriters in good faith and not for the purpose of
circumventing this Article SIXTH in connection with an offering of the
securities of the Corporation to the public;
(c) By bequest or inheritance, by operation of law upon the death
of any individual, or by any other transfer without valuable
consideration, including a gift, that is made in good faith and not for
the purpose of circumventing this Article SIXTH;
(d) Pursuant to the satisfaction of a pledge or other security
interest created in good faith and not for the purpose of circumventing
this Article SIXTH;
(e) Pursuant to a merger or consolidation adopted, or a combination
or majority share acquisition authorized by shareholder vote in
compliance with the provisions of Article FIFTH of these Amended and
Restated Articles of Incorporation and Section 1701.78, or Section
1701.83, of the Ohio Revised Code if the Corporation is the surviving or
new corporation in the merger or consolidation or is the acquiring
corporation in the combination or majority share acquisition and if the
vote of shareholders of the surviving, new, or acquiring corporation is
required by the provisions of Section 1701.78 or 1701.83 of the Ohio
Revised Code; or
10
<PAGE> 11
(f) The Person's being entitled, immediately thereafter, to
exercise or direct the exercise of voting power of the Corporation in
the election of directors within the same range theretofore attained by
that person either in compliance with the provisions of this Article
SIXTH or as a result solely of the Corporation's purchase of shares
issued by it.
The acquisition by any Person of shares of the Corporation in a manner
described under this Section 6B.(2) shall be deemed to be a Control Share
Acquisition authorized pursuant to this Article SIXTH within the range of
voting power under Section 6B.(1)(a), (b) or (c) of this Article SIXTH that
such Person is entitled to exercise after such acquisition, provided that,
in the case of an acquisition in a manner described under Section 6B.(2)(c)
or (d), the transferor of shares to such Person had previously obtained any
authorization of shareholders required under this Article SIXTH in
connection with such transferor's acquisition of shares of the Corporation.
(3) The acquisition of shares of the Corporation in good faith and not
for the purpose of circumventing this Article SIXTH the acquisition of
which (a) had previously been authorized by shareholders in compliance with
this Article SIXTH or (b) would have constituted a Control Share
Acquisition but for Section 6B.(2), does not constitute a Control Share
Acquisition for the purpose of this Article SIXTH unless such acquisition
entitles any Person, directly or indirectly, to exercise or direct the
exercise of voting power of the Corporation in the election of directors in
excess of the range of such voting power authorized pursuant to this
Article SIXTH, or deemed to be so authorized under Section 6B.(2).
C. "Interested Shares" means Voting Shares with respect to which any
of the following persons may exercise or direct the exercise of the voting
power:
(1) any Person whose Notice prompted the calling of the meeting of
shareholders;
(2) any officer of the Corporation elected or appointed by the
directors of the Corporation; provided, however, that Voting Shares
which, as of the record date of any special meeting held pursuant to
this Article SIXTH, have been owned beneficially by such person for
three or more years shall not be deemed to be "Interested Shares" for
purposes of any vote at such meeting; and
(3) any employee of the Corporation who is also a director of the
Corporation; provided, however, that Voting Shares which, as of the
record date of any special meeting held pursuant to this Article SIXTH,
have been owned beneficially by such person for three or more years
shall not be deemed to be "Interested Shares" for purposes of any vote
at such meeting;
(4) any Person that acquires such Voting Shares for a valuable
consideration during the period beginning with the date of the first
public disclosure of a proposed Control Share Acquisition or any
proposed merger, consolidation or other transaction which would result
in a change of control of the Corporation or all or substantially all of
its assets, and ending on the record date of any special meeting held
thereafter pursuant to this Article SIXTH for the purpose of voting on a
Control Share Acquisition proposed by any Person who has delivered a
Notice pursuant to Section 1 of this Article SIXTH if either of the
following applies:
(a) the aggregate consideration paid or given by the Person who
acquired the Voting Shares, and other persons acting in concert with
such Person, for all such Voting Shares exceeds Two Hundred Fifty
Thousand Dollars ($250,000.00); or
(b) the number of Voting Shares acquired by the Person who
acquired the Voting Shares, and other persons acting in concert with
such Person, for all such Voting Shares exceeds one half of one
percent of all Voting Shares; and
(5) any Person that transfers such Voting Shares for valuable
consideration after the record date of any special meeting described in
Section 6(C)(4) of this Article SIXTH as to shares so transferred, if
accompanied by the voting power in the form of a blank proxy, an
agreement to vote as instructed by the transferee, or otherwise.
SECTION 7. PROXIES. No proxy appointed for or in connection with the
shareholder authorization of a Control Share Acquisition pursuant to this
Article SIXTH is valid if it provides that it is irrevocable. No such proxy is
valid unless it is sought, appointed, and received both:
11
<PAGE> 12
A. In accordance with all applicable requirements of law; and
B. Separate and apart from the sale or purchase, contract or tender
for sale or purchase, or request or invitation for tender for sale or
purchase, of shares of the Corporation.
SECTION 8. REVOCABILITY OF PROXIES. Proxies appointed for or in connection
with the shareholder authorization of a Control Share Acquisition pursuant to
this Article SIXTH shall be revocable at all times prior to the obtaining of
such shareholder authorization, whether or not coupled with an interest.
SECTION 9. AMENDMENTS. Notwithstanding any other provisions of these
Amended and Restated Articles of Incorporation or the Regulations of the
Corporation, as the same may be in effect from time to time, or any provision of
law that might otherwise permit a lesser vote of the directors or shareholders,
but in addition to any affirmative vote of the directors or the holders of any
particular class or series of shares required by law, the Amended and Restated
Articles of Incorporation or the Regulations of the Corporation, as the same may
be in effect from time to time, the affirmative vote of at least eighty percent
(80%) of the Voting Shares, shall be required to alter, amend or repeal this
Article SIXTH or adopt any provisions in the Amended and Restated Articles of
Incorporation or Regulations of the Corporation, as the same may be in effect
from time to time, which are inconsistent with the provisions of this Article
SIXTH.
SECTION 10. LEGEND ON SHARE CERTIFICATES. Each certificate representing
shares of the Corporation's capital stock shall contain the following legend:
"Transfer of the shares represented by this Certificate is subject to the
provisions of Article SIXTH of the Corporation's Amended and Restated Articles
of Incorporation as the same may be in effect from time to time. Upon written
request delivered to the Secretary of the Corporation at its principal place of
business, the Corporation will mail to the holder of this Certificate a copy of
such provisions without charge within five (5) days after receipt of written
request therefor. By accepting this Certificate the holder hereof acknowledges
that it is accepting same subject to the provisions of said Article SIXTH as the
same may be in effect from time to time and covenants with the Corporation and
each shareholder thereof from time to time to comply with the provisions of said
Article SIXTH as the same may be in effect from time to time."
SEVENTH: The provisions of Section 1701.831 of the Ohio Revised Code shall
not apply to this Corporation.
EIGHTH: Except as otherwise provided in these Amended and Restated
Articles of Incorporation or in the Regulations of the Corporation, the holders
of a majority of the outstanding Voting Shares of the Corporation present in
person or by proxy at any meeting of the shareholders of the Corporation are
authorized to act on any matter which may properly come before such meeting.
NINTH: Except to the extent that Articles FOURTH, FIFTH and SIXTH
otherwise provide with respect to certain matters therein set forth, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in these Amended and Restated Articles of Incorporation and to add new
provisions, in the manner now or hereafter prescribed by statute, upon the
affirmative vote of a majority of the outstanding shares of the Corporation,
voting as a Class; and all rights, privileges and preferences of whatsoever
nature conferred upon shareholders, directors and officers pursuant to these
Amended and Restated Articles of Incorporation in their present form or as
hereafter amended are granted subject to this reservation. Notwithstanding the
foregoing, the adoption of any amendment, alteration, change or repeal to these
Amended and Restated Articles of Incorporation as the same may be in effect from
time to time which is inconsistent with or would have the effect of amending,
altering, changing or repealing the provisions of Sections 7, 9 or 10 of the
Regulations of the Corporation as the same may be in effect from time to time
shall require the same affirmative vote of shareholders as would be required
under such Regulations to adopt any amendment, alteration, change or repeal of
said Sections 7, 9 or 10 or to adopt any provisions inconsistent therewith.
TENTH: Without derogation from any other power to purchase shares of the
Corporation, the Corporation may, by action of its Board of Directors and to the
extent not prohibited by law, purchase outstanding shares of any class of this
Corporation's stock.
ELEVENTH: No holder of shares of any class of stock of the Corporation
shall have the right to cumulate his voting power in the election of the Board
of Directors, and the right to cumulative voting
12
<PAGE> 13
described in Ohio Revised Code Section 1701.55 is hereby specifically denied to
the holders of any class of stock of the Corporation.
TWELFTH: Except where the law or the Amended and Restated Articles of
Incorporation or Regulations of the Corporation require action to be authorized
or taken by shareholders, all of the authority of the Corporation shall be
exercised by or under the direction of the Board of Directors.
IN WITNESS WHEREOF, the above-named officers, acting for and on behalf of
the Corporation, have subscribed their names this 9th day of June, 1998.
/s/ Edward F. Crawford
--------------------------------------
Chairman of the Board, President and
Chief Executive Officer
/s/ Ronald J. Cozean
--------------------------------------
Secretary and General Counsel
13
<PAGE> 1
EXHIBIT 4.4
<TABLE>
<CAPTION>
<S> <C> <C>
COMMON STOCK COMMON STOCK
NUMBER SHARES
INCORPORATED UNDER THE LAWS PARK-OHIO HOLDINGS CORP. SEE REVERSE FOR CERTAIN
OF THE STATE OF OHIO DEFINITIONS AND TRANSFER PROVISIONS
CUSIP
This Certifies that
SPECIMEN
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, PAR VALUE $1.00 PER SHARE, OF
PARK-OHIO HOLDINGS CORP.
an Ohio corporation, transferable on the books of the Corporation in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signature of its duly authorized officers.
Dated
/s/ Ronald J Cozean PARK-OHIO HOLDINGS CORP. /s/ Edward F. Crawford
CORPORATE
SECRETARY SEAL CHAIRMAN
OHIO
COUNTERSIGNED AND REGISTERED:
BY NATIONAL CITY BANK
TRANSFER AGENT AND REGISTRAR
AUTHORIZED OFFICER
</TABLE>
PARK-OHIO HOLDINGS CORP.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUEST THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. SUCH REQUEST MAY BE MADE TO THE CORPORATION OR TO A TRANSFER AGENT.
Transfer of the shares represented by this Certificate is subject to the
provisions of Article SIXTH of the Corporation's Articles of Incorporation as
the same may be in effect from time to time. Upon written request delivered to
the Secretary of the Corporation at its principal place of business, the
Corporation will mail to the holder of this Certificate a copy of such
provisions without charge within five (5) days after receipt of written request
therefor. By accepting this Certificate the holder hereof acknowledges that it
is accepting same subject to the provisions of said Article SIXTH as the same
may be in effect from time to time and covenants with the Corporation and each
shareholder thereof from time to time to comply with the provisions of said
Article SIXTH as the same may be in effect from time to time.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common UNIF GIFT MIN ACT-_____Custodian_____
TEN ENT-as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right of under Uniform Gifts to
survivorship and not as tenants Minors
in common
Act _______
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY CODE OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OR ASSIGNEE)
- -----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
shares
- ------------------------------------------------------------------------
of the capital stock represented by the within Certificate and do hereby
irrevocably constitute and appoint ________________ Attorney to transfer the
said stock on the books of the within named Corporation with full power of
substitution in the premises.
Date ___________
--------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of the certificate in every
particular, without alteration enlargement
or any change whatsoever.
<PAGE> 1
Exhibit 5
SQUIRE, SANDERS & DEMPSEY L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
June 15, 1998
Park-Ohio Holdings Corp.
23000 Euclid Avenue
Euclid, Ohio 44117
Re: Post-Effective Amendment No. 1
to Registration Statement on Form S-8
(Registration No. 333-28407)
-------------------------------------
Gentlemen:
Reference is made to your Post-Effective Amendment No. 1 to
Registration Statement on Form S-8 ("Amendment No. 1") to be filed with the
Securities and Exchange Commission with respect to the adoption by Park-Ohio
Holdings Corp. of the Registration Statement of Park-Ohio Industries, Inc.
(Registration No. 333-28407) relating to the Common Stock, par value $1.00 per
share ("Common Stock"), of Park-Ohio Holdings Corp. issuable pursuant to the
Park-Ohio Holdings Corp. Amended and Restated 1992 Stock Option Plan and the
Park-Ohio Holdings Corp. 1996 Non-Employee Director Stock Option Plan (the
"Plans"). We are familiar with the Plans, and we have examined such documents
and certificates and considered such matters of law as we deemed necessary for
the purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Common Stock
covered by the Registration Statement, as amended by Amendment No. 1, when
issued in accordance with the provisions of the Plans, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
Squire, Sanders & Dempsey L.L.P.
<PAGE> 1
Exhibit 15
EXHIBIT 15 LETTER RE: UNAUDITED FINANCIAL INFORMATION
Board of Directors and Shareholders
Park-Ohio Holdings Corp.
We are aware of the incorporation by reference in the Post-Effective Amendment
No. 1 to the Registration Statement on Form S-8 pertaining to the Amended and
Restated 1992 Stock Option Plan and the 1996 Non-Employee Director Stock Option
Plan of Park-Ohio Holdings Corp. for the registration of 500,000 shares and
250,000 shares, respectively, of its common stock of our report dated April 22,
1998 relating to the unaudited condensed consolidated interim financial
statements of Park-Ohio Industries, Inc., which is included in its Form 10-Q for
the quarter ended March 31, 1998.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a part
of the post-effective amendment to the registration statement prepared or
certified by accountants within the meaning of Section 7 or 11 of the Securities
Act of 1933.
/s/ Ernst & Young LLP
Cleveland, Ohio
June 15, 1998
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to the Registration Statement on Form S-8 pertaining to the Amended and
Restated 1992 Stock Option Plan and the 1996 Non-Employee Director Stock Option
Plan of Park-Ohio Holdings Corp. for the registration of 500,000 shares and
250,000 shares, respectively of its common stock of our report dated February
16, 1998 with respect to the consolidated financial statements of Park-Ohio
Industries, Inc. included in its Annual Report on Form 10-K for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
Cleveland, Ohio
June 15, 1998
<PAGE> 1
EXHIBIT 24
DIRECTORS AND OFFICERS OF
PARK-OHIO HOLDINGS CORP.
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
The undersigned directors and officers of Park-Ohio Holdings Corp., an
Ohio corporation (the "Corporation"), do hereby constitute and appoint James S.
Walker, Ronald J. Cozean, and Patrick W. Fogarty, and each of them, with full
power of substitution and resubstitution, as attorneys-in-fact or
attorney-in-fact of the undersigned, for him/her and in his/her name, place and
stead, to execute and file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 Post-Effective Amendments to the
Registration Statements on Form S-8 of Park-Ohio Industries, Inc., SEC File
Nos. 33328407 and 33301047, relating to the registration of shares of the
Corporation's stock issuable or saleable under the Park-Ohio Holdings Corp.
Amended and Restated 1992 Stock Option Plan, the Park-Ohio Holdings Corp. 1996
Non-Employee Director Stock Option Plan, and the Individual Account Retirement
Plan of Park-Ohio Industries, Inc. and Its Subsidiaries, ("IARP") and interests
in the IARP (collectively, the "Securities"), with any and all amendments,
supplements and exhibits thereto, to execute and file any and all other
applications or other documents to be filed with the Commission and all
documents required to be filed with any state securities regulating board or
commission pertaining to such Securities registered pursuant to the
Registration Statement on Form S-8, with any and all amendments, supplements
and exhibits thereto each such attorney to have full power to act with or
without the others, and to have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary,
advisable or appropriate to be done in the premises as fully and to all intents
and purposes as the undersigned might or could do in person, hereby ratifying
and approving the act of said attorneys and any of them and any such
substitute.
Executed as of June 15, 1998.
/s/ Edward F. Crawford /s/ James S. Walker
- ------------------------------- ----------------------------------
Edward F. Crawford James S. Walker
President, Chief Executive Officer, Vice President, Treasurer and
Chairman of the Board and Director Chief Financial Officer
/s/ Felix J. Tarorick /s/ Ronald J. Cozean
- ------------------------------- ----------------------------------
Felix J. Tarorick Ronald J. Cozean
Vice President of Operations Secretary and General Counsel
and Director
/s/ Matthew V. Crawford /s/ Kevin R. Greene
- ------------------------------- ----------------------------------
Matthew V. Crawford Kevin R. Greene, Director
Assistant Secretary, Corporate
Counsel and Director
/s/ Lewis E. Hatch, Jr. /s/ Thomas E. McGinty
- ------------------------------- ----------------------------------
Lewis E. Hatch, Jr., Director Thomas E. McGinty, Director
/s/ Lawrence O. Selhorst /s/ James W. Wert
- ------------------------------- ----------------------------------
Lawrence O. Selhorst, Director James W. Wert, Director
<PAGE> 1
EXHIBIT 99.1
PARK-OHIO HOLDINGS CORP.
AMENDED AND RESTATED
1992 STOCK OPTION PLAN
1. PURPOSE OF PLAN. The purpose of this Plan is to advance the interests
of Park-Ohio Holdings Corp. (the "Company") and its shareholders by providing
means whereby officers (including officers who are directors) and key employees
of the Company and its subsidiaries may be furnished with additional incentive
by being given an opportunity to purchase shares of Common Stock of the Company
("Shares") pursuant to the exercise of options granted under this Plan. The
options granted under this Plan shall either be options which are intended to
qualify as "incentive stock options" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), or any successor provision ("Incentive
Stock Options") or options which do not qualify as Incentive Stock Options
("Non-Statutory Options").
2. SHARES SUBJECT TO PLAN. The aggregate number of Shares for which
options may be granted under this Plan shall not exceed 850,000, and the maximum
aggregate number of shares for which options may be granted to any officer or
key employee in any calendar year shall be 200,000, except to the extent of
adjustment authorized by Section 7. The Shares to be issued upon exercise of
options granted under the Plan shall be made available, at the discretion of the
Board of Directors, from the authorized but unissued Shares or from Shares
reacquired by the Company, including Shares purchased in the open market. Any
Shares for which an option is granted hereunder which are released from such
option for any reason shall be available for other options under this Plan.
3. PLAN ADMINISTRATION. This Plan shall be administered by the
Compensation and Stock Option Committee (the "Committee") composed of not less
than two directors appointed by the Board of Directors. The Board of Directors
may also appoint one or more directors as alternate members of the Committee,
who may take the place of any absent member or members at any meeting of the
Committee. The members and alternate members of the Committee shall at all times
be "disinterested persons" within the meaning of Rule 16b-3(c)(2)(i) promulgated
under the Securities Exchange Act of 1934. The Committee shall have full power
to construe and interpret the Plan, to establish rules for its administration
and to grant options under the Plan. A majority of the Committee shall
constitute a quorum, and the action of a majority of the members (including
alternate members) of the Committee present at any meeting at which a quorum is
present, or acts unanimously approved in writing by all members shall be acts of
the Committee.
4. OPTION GRANTS. The Committee may from time to time and upon such terms
and conditions as it may determine, authorize the granting of Incentive Stock
Options and Non-Statutory Options to purchase Shares from the Company to
officers and key employees (as determined by the Committee) of the Company or
any subsidiary of the Company (as defined in Section 424 of the Code) and may
determine the number of Shares to be covered by each such option. The term
"employees" includes officers and directors who are full-time employees of the
Company or any subsidiary of the Company. The aggregate fair market value
(determined as of the date the option is granted) of Shares for which Incentive
Stock Options are exercisable for the first time by an individual during any
calendar year (under this Plan or any other plan of the company or of a parent
or subsidiary of the Company which provides for the granting of Incentive Stock
Options) shall not exceed $100,000. Any Incentive Stock Option granted to any
employee who is, at the time the option is granted, deemed for purposes of
Section 422 of the Code, or any successor provision, to own shares of the
Company possessing more than 10% of the total combined voting power of all
classes of shares of the Company or of a parent or subsidiary of the Company
shall have an option exercise price that is at least 110% of the fair market
value of the Shares at the Date of grant and shall not be exercisable after the
expiration of five years from the date it is granted. All actions of the
Committee under this Section shall be conclusive, provided such actions are not
inconsistent with the provisions of the Plan. Nothing in the Plan or in any
option
<PAGE> 2
granted thereunder shall confer any right on an employee to continue in the
employ of the Company or shall interfere in any way with the right of the
Company or any subsidiary of the Company, at any time to terminate his or her
employment with or without cause or to adjust his or her compensation.
5. OPTION PRICE. The option price shall be determined by the Committee and
set forth in the option agreement, but in no event shall the option price be
less than 100 percent of the fair market value of the Shares covered by the
option at the time the option is granted. The date on which the Committee
approves the granting of an option shall be deemed the date on which the option
is granted. The fair market value shall be the closing price of the Shares on
the NASDAQ National Market on the trading day immediately preceding the date on
which the option is granted.
6. PAYMENT. Upon the exercise of an option, payment of the option exercise
price may be made in cash or Shares or a combination of cash and Shares. The
Committee shall establish appropriate procedures for the acceptance of Shares in
payment or partial payment of an option exercise price.
7. ADJUSTMENTS. The Committee may make or provide for such adjustments in
the option price and in the number or kind of Shares or other securities
available for or covered by options as the Committee, in its sole discretion,
may determine are equitably required as the result of any change in the number
or kind of Shares or of other securities into which Shares shall have been
changed or for which they shall have been exchanged.
8. OPTION PERIOD. No option granted under this Plan may be exercised later
than 10 years after the date on which the option is granted.
9. OPTION AGREEMENT. The option agreement in which option rights are
granted to an employee shall be in the applicable form (consistent with this
Plan) from time to time approved by the Committee and shall be signed on behalf
of the Company by the Chairman of the Board, the President, the Secretary or any
Vice President of the Company, other than the employee who is a party thereto,
and shall be dated as of the date of the granting of the option, as determined
in Section 5. Except as permitted by applicable law, no option shall be
transferable by the optionee except by will or the laws of descent and
distribution, and options may be exercised during the employee's lifetime only
by him or her or his or her guardian or legal representative.
10. AMENDMENT OF PLAN. The Board of Directors shall have the right to
amend, modify, suspend or terminate this Plan at any time; provided, however,
that no such action shall, without the consent of any optionee, affect or in any
way impair the rights of such optionee under any option theretofore granted
under the Plan. In addition, no amendment or change shall be made in the Plan,
without further stockholder approval, (a) increasing the total number of Shares
as to which options may be granted under the Plan; (b) changing the minimum
option price hereinbefore specified for the optioned Shares or otherwise
materially increasing the benefits accruing to participants under the Plan; or
(c) changing the class of employees to whom options may be granted under the
Plan. Notwithstanding any other provision hereof, no action may be taken by the
Company which will impair the validity of any option then outstanding or which
will prevent the options issued or to be issued under this Plan intended as
Incentive Stock Options from being Incentive Stock Options under Section 422 of
the Code, or any successor provision, or prevent options issued pursuant to this
Plan from meeting the requirements for exemption from Section 16(b) of the
Securities Exchange Act of 1934, or subsequent comparable statute, as set forth
in Rule 16b-3 under said Act or subsequent comparable Rule.
11. EXPIRATION OF PLAN. Options may be granted under this Plan at any time
on or prior to February 18, 2002, on which date the Plan shall expire but
without affecting any options then outstanding.
12. APPROVAL OF PLAN BY SHAREHOLDERS. The Amended and Restated Plan was
adopted by resolution of the Board of Directors of Park-Ohio Industries, Inc. on
March 16, 1995 and submitted for approval by the shareholders of Park-Ohio
Industries, Inc. at the 1995 Annual Meeting of the Shareholders of Park-Ohio
Industries, Inc. The rights and obligations of Park-Ohio Industries, Inc. under
the Amended and Restated Plan were assumed by resolution of the Company's Board
of Directors on February 19, 1998.
<PAGE> 1
EXHIBIT 99.2
PARK-OHIO HOLDINGS CORP.
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. PURPOSES
The purposes of the Park-Ohio Holdings Corp. 1996 Non-employee Director
Stock Option Plan (the "Plan") are to promote the interests of Park-Ohio
Holdings Corp. (the "Company") and its subsidiaries by providing an incentive to
attract and retain qualified directors for the board of the Company based upon
the success and growth of the Company and its subsidiaries and by furthering the
identity of interests of the directors and the stockholders of the Company.
2. SHARES SUBJECT TO THE PLAN
The maximum aggregate number of shares as to which stock options may at any
time be granted under the Plan (the "Options") shall be two hundred fifty
thousand (250,000) shares of the Company's common stock, par value $1.00 per
share (the "Common Stock"), subject to adjustment in accordance with Section 10.
Common Stock issued upon exercise of Options may be either authorized but
unissued shares or shares previously issued and reacquired by the Company. If
and to the extent Options terminate, expire or are cancelled without having been
exercised, the shares subject to such Options shall again be available for
purposes of, and may be optioned under, the Plan. All Options shall be
"nonqualified" under and for purposes of the Internal Revenue Code of 1986, as
amended ("Tax Code").
3. ELIGIBILITY FOR PARTICIPATION
Any member of the Company's Board of Directors ("Board") who is not an
employee of the Company or any of its subsidiaries shall be eligible to
participate in the Plan. Nothing contained in the Plan shall be construed to
limit the right of the Company to grant options to purchase its Common Stock
otherwise than under the Plan or to grant a particular person more than one
Option.
4. GRANTING OF OPTIONS
(a) Each director of the Company who is eligible to participate in this
Plan on the date of the Annual Meeting of Shareholders of any year, that is
whose term of office will continue for at least the year following such Annual
Meeting, shall be granted an Option as of such date, with the number of shares
of Common Stock subject to such Option to be equal to 6,000. Each Option shall
have an exercise price per share equal to the average Fair Market Value per
share of Common Stock for the five (5) trading days immediately preceding the
date as of which such Option is granted. Each Option grant to each director
shall be in lieu of any and all retainer fees (and meeting fees) otherwise
payable to the director for his service as such and/or on any committees of the
Board for the 12 month period beginning on the date of the Annual Meeting of
Shareholders as of which the Option is granted. Except as otherwise provided
herein, all Options granted pursuant to the Plan shall become exercisable six
months after the date of grant.
(b) For purposes of the Plan, the Fair Market Value of a share of Common
Stock as of any trading day shall be the reported closing price for a share of
Common Stock on the NASDAQ National Market.
<PAGE> 2
5. TERM OF OPTIONS
Except as provided in Section 7, Options granted hereunder shall be
exercisable for a term of ten years from the date of grant (the "Expiration
Date"). Notwithstanding anything to the contrary contained herein, no Option
shall be exercisable earlier than six months after its date of grant.
6. EXERCISE OF OPTIONS
(a) The exercise price of the shares as to which an Option shall be
exercised shall be paid in full at the time of exercise in cash or Common Stock
(valued at its Fair Market Value at the date of exercise) or a combination of
cash and Common Stock.
(b) Except as provided in Section 7, no Option may be exercised at any time
unless the holder thereof is then a director of the Company and has continuously
remained a director of the Company at all times since the date of grant of such
Option.
(c) Options shall be exercised by the holder thereof giving written notice
of such exercise to the Company. An Option may be exercised only with respect to
a whole number of shares of Common Stock. Subject to the other provisions
hereof, Options may be exercised at any time and in any order. Also subject to
the other provisions hereof, subsequent to the death of a director or former
director, any Options held by such decedent may be exercised by his personal
representative or the person or persons to whom said Option shall have been
transferred, as permitted hereunder.
(d) An Option shall be exercisable during a director's or former director's
lifetime only by the director or former director, the director's transferee, as
permitted hereunder, or, if the director or former director has become disabled,
by his legal representative.
7. EXERCISE ON TERMINATION OF EMPLOYMENT
(a) Except as otherwise provided herein, if a director to whom an Option
has been granted ceases to be a member of the Board (otherwise than as a result
of his death or after attainment of age 65), such Option may be exercised at any
time within six (6) months after the date on which he ceased to be a director;
provided, that in no event shall any Option be exercisable for a period of six
months from the date of grant.
(b) If a director to whom an Option has been granted dies while a member of
the Board or, notwithstanding Section 7(a), within six (6) months after he
ceases to be a member of the Board, or ceases to be a member of the Board after
attainment of age 65, such Option may be exercised at any time within one (1)
year after the later of the date of the director's death or the date after
attainment of age 65 that the director ceased to be a Board member, as the case
may be; provided, that in no event shall any Option be exercisable for a period
of six months from the date of grant.
(c) Notwithstanding anything to the contrary herein contained, if a
director resigns his directorship and such resignation is effective prior to his
attainment of age 65, any Option granted to him within six months prior to the
effective date of such resignation shall terminate as of the effective date of
such resignation. Moreover, at such other time as the right of any Option holder
to exercise an Option terminates, such Option, to the extent not theretofore
exercised, shall terminate.
(d) Notwithstanding anything to the contrary herein contained, in no event
shall any Option be exercisable after its Expiration Date.
<PAGE> 3
8. CONFIDENTIALITY/NONSOLICITATION
Each director accepting an Option covenants and agrees that he will not,
while a director of Company or at any time thereafter, disclose, duplicate,
distribute or use any Confidential Information, other than on behalf and for the
benefit of Park-Ohio. The foregoing agreement shall not be construed as
superseding or abridging any other stricter requirements or greater restrictions
with respect to the subject matter thereof that may also be applicable to such
director. The obligations contained in this Section 8 are, and constitute,
separate and several obligations of each such director, and such obligations
shall not be affected by, but rather shall survive, any termination of the Plan
and/or any exercise or termination of any Option. For purposes of this Section
8:
(a) "Confidential Information" means customer lists, rating formulae,
rate sheets, trade secrets, market studies, financial data and projections,
analyses, strategic plans and other documents, material and/or information,
whether or not in writing, acquired by a director of the Company as a
result of such director's service as such, which are (a) not totally within
the public domain and (b) such that a reasonable, prudent businessman would
not voluntarily relinquish, disseminate or communicate same to an actual or
potential competitor, customer or supplier.
(b) "Park-Ohio" includes the Company and also includes any other
entity in which the Company owns, whether directly or indirectly, fifty
percent (50%) or more of the stock and/or assets.
Notwithstanding any other provision of the Plan, any and all unexercised
Options and all rights under the Plan of a director or former director who
received an Option (or his legal transferee, designated beneficiary or legal
representatives) including the right to exercise the unexercised Options, shall
be forfeited if, prior to the time of such exercise, the director or former
director shall violate any of the agreements and covenants contained in this
Section 8.
9. NON-TRANSFERABILITY OF OPTIONS
A holder's Options and other rights and interests under the Plan (including
the right to exercise unexercised Options) may not be assigned or transferred
except that, (i) in the case of a holder's death, such Options, and other rights
and interests, shall be transferable to the person or persons to whom the Option
shall have been transferred by will or the laws of descent and distribution,
(ii) a holder's Options, and other rights and interests, may be transferred to
(I) any trust or estate in which the original holder (or such holder's spouse or
other immediate relative) has a substantial beneficial interest or (II) a spouse
or other immediate relative of the original holder, and (iii) a holder's
Options, and other rights and interests, may be transferred pursuant to a
qualified domestic relations order (as defined in the Tax Code). Any Option so
transferred shall continue to be subject to all the terms and conditions
contained in this Plan or any written agreement, pursuant to Section 14.
10. ADJUSTMENTS FOR CERTAIN EVENTS
In the event of a stock dividend, recapitalization, merger, consolidation,
split-up, combination or any other change in shares of Common Stock of the
Company, the Common Stock available for purposes of the Plan or subject to
Options outstanding hereunder shall be correspondingly increased, diminished or
changed, so that by exercise of any outstanding Option, the holder of the Option
shall receive, without change in aggregate purchase price, securities, as so
increased, diminished or changed, comparable to the number of shares of Common
Stock he would have received if he had exercised his Option prior to such event
and had continued to hold the Common Stock so purchased until affected by such
event.
<PAGE> 4
11. AMENDMENT AND TERMINATION
The Plan shall terminate on December 31, 2001 and no Options shall be
granted hereunder after such date. The Board may at any time and from time to
time terminate, modify or amend the Plan; provided, however, that unless also
approved or ratified by a vote of the holders of the outstanding shares of the
capital stock of the Company in accordance with the requirements of paragraph
(b) of Rule 16b-3, any such modification or amendment shall not (subject,
however, to the provisions of Section 10): (a) increase the maximum amount of
Common Stock for which Options may be granted under the Plan; (b) reduce the
Option exercise price at which Options may be granted; (c) extend the period
during which Options may be exercised beyond the times originally prescribed;
(d) materially modify the requirements as to eligibility for participation in
the Plan; or (e) materially increase the benefits accruing to Participants under
the Plan; provided, further, that the Plan provisions may not be amended more
than once every six months, other than to comport with changes in the Tax Code,
the Employee Retirement Income Security Act of 1974, as amended, or in either
case the rules thereunder. No such termination, modification or amendment may
diminish, limit or other wise impair the rights of a holder of an outstanding
Option. Nevertheless, with the consent of the holder affected, any such action
may be taken and outstanding Options may be amended in a manner not inconsistent
with the terms of the Plan.
12. RIGHTS OF AN OPTION HOLDER
Neither the Plan nor any action taken hereunder shall be construed as
giving any director any right to be retained as a director of the Company or
restrict the right to terminate his Board membership.
13. RIGHTS AS A STOCKHOLDER
A holder of an Option shall have no rights as a stockholder with respect to
any Common Stock covered by an Option until he shall have become the holder of
record of such Common Stock, and, except as provided in Section 10 hereof, no
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights in respect
of such share for which the record date is prior to the date on which he shall
become the holder of record thereof.
14. AGREEMENTS WITH OPTION HOLDERS
Each Option granted under the Plan shall be evidenced by a written
agreement executed by an officer of the Company and the optionee and containing
such terms and conditions not inconsistent with the Plan as may be prescribed by
the officer executing the same.
15. REQUIREMENTS FOR ISSUANCE OF SHARES
The Company shall have the right to condition the issuance of Common Stock
to any holder of an Option upon exercise thereof on such holder's undertaking in
writing to comply with such restrictions on his subsequent disposition of such
Common Stock as the Company shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof, and certificates
representing such share may be legended to reflect any such restrictions.
<PAGE> 5
16. EFFECTIVE DATE
This Plan shall be effective as of May 1, 1996.
17. PLAN ADMINISTRATION
The Plan shall be administered by the Compensation and Stock Option
Committee of the Board (the "Committee"). The Committee, subject to the other
provisions of the Plan, shall have the sole authority to determine any matters
arising under the Plan. Subject to the other provisions of the Plan, the
Committee shall have full power and authority to administer and interpret the
Plan and to adopt or amend such rules, regulations, agreements and instruments
for implementing the Plan and for conduct of its business as it deems necessary
or advisable, except to the extent, in each case, different provision is made by
the Regulations of the Company or by resolution of the Board. Subject to the
express provisions of the Plan, the Committee's interpretations of the Plan and
all determinations made by the Committee pursuant to the powers vested in it
hereunder shall be conclusive and binding on all persons having any interest in
the Plan or in any options granted hereunder. A majority of the Committee shall
constitute a quorum for purposes of meetings which may be held at such times and
places and on such notice as the Committee deems appropriate. All actions and
determinations of the Committee shall be made by not less than a majority of its
members and may be made at a meeting or by written consent in lieu of a meeting,
except to the extent, in each case, different provision is made by the
Regulations of the Company or by resolution of the Board.
