Exhibit 3(a)
CERTIFICATE OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
INVACARE CORPORATION
A. MALACHI MIXON, III, President, and DALE C. LaPORTE, Secretary, of
INVACARE CORPORATION, an Ohio corporation (the "Corporation"), do hereby certify
that at a meeting of shareholders duly called and held on May 28, 1987, at which
meeting a quorum of shareholders was present in person or by proxy, the
following resolutions to amend and restate the Articles of Incorporation of the
Corporation as set forth in Exhibit A to the Company's Definitive Proxy
Statement dated April 30, 1987 and as attached hereto as Exhibit A, were duly
adopted by the affirmative vote of holders of shares entitling them to exercise
a majority of the voting power of the Corporation.
RESOLVED: That the Articles of Incorporation of Invacare Corporation be
amended and restated to restate Article IV as set forth in Subdivisions
A and B to Article IV in Exhibit A to the Company's Definitive Proxy
Statement dated April 30, 1987, and that it be
FURTHER RESOLVED: That the President and Secretary of Invacare
Corporation be and they are hereby authorized and directed to execute
and file in the Office of the Secretary of State of Ohio an appropriate
Certificate of Amendment in order to carry out the intent and purposes
of the preceding resolution and render effective said amendment and
restatement of the Articles of Incorporation; and
RESOLVED: That the Articles of Incorporation of Invacare Corporation be
amended and restated to add a new provision to Article IV as set forth
in Subdivision C to Article IV in Exhibit A to the Company's Definitive
Proxy Statement dated April 30, 1987, and that it be
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FURTHER RESOLVED: That the President and Secretary of Invacare
Corporation be and they are hereby authorized and directed to execute
and file in the Office of the Secretary of State of Ohio an appropriate
Certificate of Amendment in order to carry out the intent and purposes
of the preceding resolution and render effective said amendment and
restatement of the Articles of Incorporation.
IN WITNESS WHEREOF, said A. Malachi Mixon, III, President and Dale C.
LaPorte, Secretary, acting for and on behalf of the Corporation, have hereunto
subscribed their names this 28th day of May, 1987.
INVACARE CORPORATION
By: /s/ A. Malachi Mixon, III
------------------------
A. Malachi Mixon,
III, President
And: /s/ Dale C. LaPorte
-----------------------
Dale C. LaPorte, Secretary
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
INVACARE CORPORATION
ARTICLE I
The name of the Corporation shall be Invacare Corporation.
ARTICLE II
The principal office of the Corporation shall be located in Elyria, Lorain
County, Ohio.
ARTICLE III
The purposes of the Corporation shall be:
(1) To manufacture, assemble, sell, lease, and distribute wheelchairs,
patient aids and other health care products of every kind and nature; and
(2) To enter into, promote or conduct any other kind of business,
contract or undertaking permitted to corporations for profit organized under the
General Corporation Law of the State of Ohio, to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to 1701.98,
inclusive, of the Revised Code of Ohio. and, in connection therewith, to
exercise all express and incidental powers normally permitted such corporations.
ARTICLE IV
The authorized number of shares of capital stock of the Corporation
shall be Thirty Million Three Hundred Thousand (30,300,000), of which Eighteen
Million (18,000,000) shall be Common Shares, without par value, Twelve Million
(12,000,000) shall be Class S Common Shares, without par value, and Three
Hundred Thousand (300,000) shall be Serial Preferred Shares, without par value.
SUBDIVISION A
Provisions Applicable to Serial Preferred Shares
The Serial Preferred Shares may be issued, from time to time, in one or
more series, with such designations. preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue of such series adopted by the Board of
Directors. The Board of Directors, in such resolution or resolutions (a copy of
which shall be filed and recorded as required by law), is also expressly
authorized to fix:
(a) The distinctive serial designations and the division of such shares
Into series and the number of shares of a particular series, which may be
Increased or decreased, but not below the number of shares thereof then
outstanding, by a certificate made. Signed, filed and recorded as required by
law;
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(b) The annual dividend rate for the particular series, and the date or
dates from which dividends on all shares of such series shall be cumulative, if
dividends on shares of the particular series shall be cumulative.
(c) The redemption price or prices, if any, for the particular series:
(d) The right, if any, of the holders of a particular series to convert
such stock into other classes of shares (except for Class B Common Shares), and
the terms and conditions of such conversions: and
(e) The obligation, if any, of the Corporation to purchase and retire
and redeem shares of a particular series as a sinking fund or redemption or
purchase account, the terms thereof and the redemption price or prices per share
for such series redeemed pursuant to the sinking fund or redemption or purchase
account.
All shares of any one series of Serial Preferred Shares shall be alike
in every particular and all series shall rank equally and be identical in all
respects except insofar as they may vary with respect to the matters which the
Board of Directors is hereby expressly authorized to determine in the resolution
or resolutions providing for the issue of any series of the Serial Preferred
Shares.
In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, then before any distribution or payment shall have
been made to the holders of the Common Shares or me Class Es Common Shares, the
holders of the Serial Preferred Shares of each series shall be entitled to be
paid, or to have set apart in trust for payment, an amount from the net assets
of the Corporation equal to that stated and expressed in the resolution or
resolutions adopted by the Board of Directors which provide for the issue of
such series, respectively. The remaining net assets of the Corporation shall be
distributed solely among the holders of the Common Shares and the Class B Common
Shares according to their respective shares.
The holders of Serial Preferred Shares shall be entitled to one vote
for each Serial Preferred Share upon all matters presented to the shareholders,
and, except as otherwise provided by these Amended and Restated Articles of
Incorporation or required by law, the holders of Serial Preferred Shares, the
holders of Common Shares and the holders of Class B Common Shares shall vote
together as one class on all matters. No adjustment of the voting rights of
holders of Serial Preferred Shares shall be made in the event of an increase or
decrease in the number of Common Shares or Class B Common Shares authorized or
issued or in the event of a stock split or combination of the Common Shares or
Class B Common Shares or in the event of a stock dividend on any class of stock
payable solely in Common Shares or Class B Common Shares.
The affirmative vote of the holders of at least two-thirds of the
Serial Preferred Shares at the time outstanding, given in person or by proxy at
a meeting called for the purpose at which the holders of Serial Preferred Shares
shall vote separately as a class, shall be necessary to adopt any amendment to
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the Amended and Restated Articles of Incorporation (but so far as the holders of
Serial Preferred Shares are concerned, such amendment may be adopted with such
vote) which:
(i) changes issued shares of Serial Preferred Shares of all
series then outstanding into a lesser number of shares of the
Corporation of the same class and series or into the same or a
different number of shares of the Corporation of any other class or
series; or
(ii) changes the express terms of the Serial Preferred Shares
in any manner substantially prejudicial to the holders of all series
thereof then outstanding; or
(iii) authorizes shares of any class, or any security
convertible into shares of any class, or authorizes the conversion of
any security into shares of any class, ranking prior to the Serial
Preferred Shares; or
(iv) changes the express terms of issued shares of any class
ranking prior to the Serial Preferred Shares in any manner
substantially prejudicial to the holders of all series of Serial
Preferred Shares then outstanding:
and the affirmative vote of the holders of at least two-thirds of the shares of
each affected series of Serial Preferred Shares at the time outstanding, given
in person or by proxy at a meeting called for the purpose at which the holders
of each affected series of Serial Preferred Shares shall vote separately as a
series, shall be necessary to adopt any amendment to the Amended and Restated
Articles of Incorporation (but so far as the holders of each such series of
Serial Preferred Shares are concerned, such amendment may be adopted with such
vote) which:
(i) changes issued shares of Serial Preferred Shares of one or
more but not all series then outstanding into a lesser number of shares
of the Corporation of the same series or into the same or a different
number of shares of the Corporation of any other class or series; or
(ii) changes the express terms of any series of the Serial
Preferred Shares in any manner substantially prejudicial to the holders
of one or more but not all series thereof then outstanding; or
(iii) changes the express terms of issued shares of any class
ranking prior to the Serial Preferred Shares in any manner
substantially prejudicial to the holders of one or more but not all
series of Serial Preferred Shares then outstanding.
Whenever reference is made herein to shares "ranking prior to the Serial
Preferred Shares," such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof either as to
the payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation are given
preference over the rights of the holders of Serial Preferred Shares; whenever
reference is made to shares "on a parity with the Serial Preferred Shares," such
reference shall mean and include all shares of the Corporation in respect of
which the rights of the holders thereof (i) neither as to the payment of
dividends nor as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation are given preference
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over the rights of the holders of Serial Preferred Shares and (ii) either as to
the payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation rank on an
equality (except as to the amounts fixed therefor) with the rights of the
holders of Serial Preferred Shares; and whenever reference is made to shares
"ranking junior to the Serial Preferred Shares," such reference shall mean and
include all shares of the Corporation in respect of which the rights of the
holders thereof both as to the payment of dividends and as to distributions in
the event of a voluntary or involuntary liquidation, dissolution or winding up
of the Corporation are junior and subordinate to the rights of the holders of
the Serial Preferred Shares.
Subdivision B
Provisions Applicable to Common Shares and Class a Common Shares
In this Subdivision B of Article IV, any reference to a section or
paragraph, without further attribution, within a provision relating to a
particular class of shares is intended to refer solely to the specified section
or paragraph of the other provisions relating to the same class of shares.
The Common Shares and Class B Common Shares shall be subject to the
express terms of the Serial Preferred Shares and of any series thereof and shall
have the following voting powers, designations, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations or restrictions thereof:
1. Dividends.
1.1 Whenever the full dividends upon any outstanding Serial Preferred
Shares for all past dividend periods shall have been paid and the full dividends
thereon for the then current respective dividend periods shall have been paid,
or declared and a sum sufficient for the respective payments thereof set apart,
the holders of the Common Shares and Class B Common Shares shall be entitled to
receive such dividends and distributions, payable in cash or otherwise, as may
be declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor, provided that no cash
dividend shall be declared and paid on the Class B Common Shares unless,
simultaneously therewith, a cash dividend per share of at least one hundred and
ten percent (110% of the amount per share of the dividend on the Class B Common
Shares is declared and paid on the Common Shares. Notwithstanding the foregoing,
in the event that any dividend shall be declared in Common Shares or Class B
Common Shares, such dividend shall be declared at the same rate per share on
Common Shares and Class B Common Shares, but the dividend payable on Common
Shares shall be payable in Common Shares and the dividend payable on Class B
Common Shares shall be payable in Class B Common Shares. If the Corporation
shall in any manner split, subdivide or combine the outstanding Common Shares or
Class B Common Shares, the outstanding shares of the other such class of shares
shall be split, subdivided or combined in the same manner proportionately and on
the same basis per share.
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2. Issuance of the Class B Common Shares.
2.1 The Board of Directors may authorize by resolution the manner in
which Class B Common Shares shall initially be issued (the "Initial Issuance")
and may set such terms and conditions (including the determination of the record
date for the Initial Issuance and to "Initial Issuance Date" for all purposes
hereunder) as it deems appropriate or advisable with respect thereto, without
any vote or other action by the shareholders, except as otherwise required by
law.
2.2 Following the Initial Issuance, the Board of Directors may only
issue Class B Common Shares in the form of a distribution or distributions
pursuant to a stock dividend on or split-up of the Class B Common Shares and
only to the then holders of the outstanding Class B Common Shares et conjunction
with and in the same ratio as a stock dividend on or split-up of the Common
Shares.
3. Rights on Liquidation.
In the event of any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, after the payment or setting
apart for payment to the holders of any outstanding Serial Preferred Shares of
the full preferential amounts to which such holders are entitled as herein
provided or referred to, all of the remaining assets of the Corporation shall
belong to and be distributable in equal amounts per share to the holders of the
Common Shares and the holders of Class B Common Shares, as if such classes
constituted a single class. For purposes of this paragraph 3, a consolidation or
merger of the Corporation with any other corporation, or the sale, transfer or
lease of all or substantially all its assets shall not constitute or be deemed a
liquidation, dissolution or winding up of the Corporation.
4. Conversion of Class B Common Shares.
4.1 The holders of Class B Common Shares shall have the right, at their
option, to convert any or all such shares into Common Shares of the Corporation
on the following terms and conditions:
(i) Each Class B Common Share shall be convertible, at any
time, at the office of any transfer agent for the Common Shares of the
Corporation, and at such other place or places, if any, as the Board of
Directors may determine, into one fully paid and nonassessable Common
Share of the Corporation upon surrender at such office or other place
of the certificate or certificates representing the Class B Common
Shares so to be converted. In no event, upon conversion of any Class B
Common Shares into Common Shares, shall any allowance or adjustment be
made in respect of dividends on the Class B Common Snares or the Common
Shares.
(ii) Class B Common Shares shall be deemed to have been
converted and the person converting the same shall become a holder of
Common Shares for the purpose of receiving dividends and for all other
purposes whatsoever as of the date when the certificate or certificates
for the Class B Common Shares to be converted are surrendered to the
Corporation as provided in paragraph 4.1(v).
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(iii) A number of Common Shares sufficient to provide, upon
the basis hereinbefore set forth, for the conversion of all Class B
Common Shares outstanding shall at all times be reserved by the
Corporation for the exercise of the conversion rights of the holders of
Class B Common Shares.
(iv) If the Corporation shall, at any time, be consolidated or
merged with, or shall sell its property as an entirety or substantially
as an entirety to, any other corporation or corporations, or in the
event of any recapitalization or reclassification of its shares, proper
provisions shall be made as a part of the terms of each such
consolidation., merger, sale, recapitalization or reclassification so
that the holder of any of the Class B Common Shares outstanding
immediately prior to such consolidation, merger, sale, recapitalization
or reclassification shall thereafter be entitled to and only entitled
to conversion rights upon the terms and with respect to such securities
of the consolidated, merged or purchasing corporation, or with respect
to such securities issued upon such recapitalization or
reclassification, as such holder would have been entitled to receive
upon such consolidation, merger, sale, recapitalization or
reclassification if such holder had exercised the conversion privilege
immediately prior thereto. The provisions of this paragraph 4.1(iv)
shall similarly apply to successive consolidations, mergers, sales,
recapitalizations or reclassifications.
(v) Before any holder of Class B Common Shares shall be
entitled to convert the same into Common Shares, he shall surrender his
certificate or certificates for such Class B Common Shares to the
Corporation at the office of a transfer agent for the Common Shares, or
at such other piece or places, if any, as the Board of Directors may
determine, duly endorsed or accompanied if appropriate by duly executed
instruments of transfer and shall give written notice to the
Corporation at said office or place that he elects so to convert the
Class B Common Shares represented by _____ certificate or certificates
so surrendered. Unless the Common Shares are to be issued in the name
of the registered owner of the certificates surrendered, the holder
shall state in writing the name or names in which he wishes the
certificate or certificates for Common Shares to be issued, and shall
furnish all requisite stock transfer and stock issuance tax stamps, or
funds therefor. The Corporation shall as soon as practicable after such
deposit of certificates for Class B Common Shares, accompanied by the
written notice above prescribed, issue and deliver, at the office or
place at which such certificates were deposited, to the person for
whose account Class B Common Shares were so surrendered, or to his
assignee or assignees, certificates for the number of full Common
Shares to which he shall be entitled as aforesaid.
4.2 All outstanding Class B Common Shares shall automatically, without
any act or deed on the part of the Corporation or any other person, be converted
into Common Shares on a share-for-share basis (i) if at any time the Board of
Directors, in its sole discretion, determines that there has been a material
adverse change in the liquidity, marketability or market value of the
outstanding Common Shares due to an actual or threatened delisting of the Common
Shares from a national securities exchange or a national over-the-counter
listing or due to requirements under applicable state securities laws in any
such case attributable to the existence of the Class B Common Shares; or (ii) if
the Board of Directors, in its sole discretion, elects to effect a conversion in
connection with its approval of any sale or lease of all or substantially all of
the Corporation's assets or any merger, consolidation, liquidation or
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dissolution of the Corporation. In the event of any such automatic conversion,
each stock certificate theretofore representing Class B Common Shares will
thereafter represent the same number of Common Shares.
4.3 The provisions of this paragraph 4 shall be in addition to the
provisions of paragraphs 6.1(i) (A) (4), 6.1 (ii) and 6.1 (iv), which require
automatic conversion of Class B Common Shares in the circumstances provided
therein.
4.4 The Class B Common Shares converted into Common Shares as provided
in paragraph 4 or paragraph 6 shall resume the status of authorized but unissued
Class B Common Shares. Upon the automatic conversion of Class B Common Shares
into Common Shares pursuant to paragraph 4.2, the Class B Common Shares shall no
longer be authorized for issuance.
5. Voting.
5.1 Each Common Share shall entitle the holder thereof to one vote.
5.2 Each Class B Common Share shall entitle the holder thereof to ten
votes. Except as otherwise provided herein or required by law, holders of Common
Shares, Class B Common Shares and Serial Preferred Shares shall at all times
vote on all matters (including the election of directors) together as one class
and together with the holders of any other series or class of shares of the
Corporation accorded such class voting right.
5.3 The affirmative vote of the holders of a majority of the
outstanding Common Shares and of Class B Common Shares, each voting separately
as a class, shall be required to:
(i) authorize additional Class B Common Shares;
(ii) modify or eliminate paragraph 2 above; or
(iii) adopt any other amendment hereof that alters or changes
the designations or powers or the preferences, qualifications,
limitations, restrictions or the relative or special rights of either
the Common Shares or the Class B Common Shares so as to affect holders
of shares of such class adversely; provided, that an increase in the
number of authorized Common Shares shall not be deemed to affect the
holders of Common Shares adversely for purposes of this paragraph
5.3(iii).
6. Limitations on Transfer and issuance of Class B Common Shares.
6.1 (i) Subject to the provisions of paragraph 6.5, no person holding
any Class B Common Share may transfer, and the Corporation shall not register
the transfer of, such Class B Common Share or any interest therein, whether by
sale, assignment, gift, bequest, appointment or otherwise, except to a
"Permitted Transferee" of such person. The term "Permitted Transferee" shall
mean only,
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(A) In the case of a holder of Class B Common Shares (a "Holder") who
is a natural person and the holder of record and beneficial owner of shares
subject to a proposed transfer, "Permitted Transferee" means:
(1) The Holder, the spouse of such Holder, any lineal
descendant of a grandparent of such Holder, or any spouse of such
lineal descendant (herein collectively referred to as "such Holder's
Family Members");
(2) The trustee of a trust solely for the benefit of such
Holder or such Holder's Family Members, provided that such trust may
also grant a general or special power of appointment to one or more of
such Holder's Family Members and may permit trust assets to be used to
pay taxes, legacies and other obligations of the trust or of the
estates of one or more of such Holder's Family Members payable by
reason of the death of any of such Family Members;
(3) The trustee of a trust which is not solely for the benefit
of such Holder or such Holder's Family Members so long as such Holder
and/or one or more of such Holder's Permitted Transferees (determined
under this paragraph 6.1 (i) (A)) possess the power to vote or direct
the vote of the Class B Common Shares held by such trustee:
(4) A corporation if all of the outstanding capital stock of
such corporation is beneficially owned by, or a partnership if all of
the partners are and all of the partnership interests are beneficially
owned by, the Holder and his Permitted Transferees determined under
this paragraph 6.1(1)(A). provided that if by reason of any change in
the ownership of such stock or partners or partnership interests, such
corporation or partnership would no longer qualify as a Permitted
Transferee of such Holder or his Permitted Transferees, all Class B
Common Shares then held by such corporation or partnership shall
immediately and automatically, without further act or deed on the part
of the Corporation or any other person, be converted into Common Shares
on a share-for-share basis, and stock certificates formerly
representing such Class B Common Shares shall thereupon and thereafter
be deemed to represent the like number of Common Shares;
(5) An organization established by the Holder or such Holder's
Family Members, contributions to which are deductible for federal
income, estate or gift tax purposes; or
(6) The executor, administrator or personal representative of
the estate of such Holder or the guardian or conservator of such Holder
adjudged disabled by a court of competent jurisdiction, acting in his
capacity as such.
(B) In the case of a Holder holding the shares subject to a proposed
transfer as trustee pursuant to a trust (ether than a trust described in
paragraph 6.1(i) (C) below or a trust for an employee benefit or employee stock
ownership plan), "Permitted Transferee" means (1) the person who established
such trust and (2) any Permitted Transferee of any such person determined
pursuant to paragraph 6.1(i) (A) above.
(C) In the case of a Holder holding shares subject to a proposed
transfer as trustee pursuant to a trust which was irrevocable on the Initial
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Issuance Date, "Permitted Transferee" means (1) any person to whom or for whose
benefit principal may be distributed either during or at the end of the term of
such trust whether by power of appointment or otherwise (excluding beneficiaries
of any employee benefit plan) and (2) any Permitted Transferee of any such
person determined pursuant to paragraph 6.1(i) (A) above.
(D) In the case of a Holder which is a partnership holding shares
subject to a proposed transfer, "Permitted Transferee" means (i) any partner
owning more than ten percent (10%) of the equity of such partnership as of the
Initial Issuance Date and (ii) any Permitted Transferee of such partner.
(E) In the case of a Holder which is a corporation (other than an
organization described in subsection 6.1 (i) (A) (5) above) holding shares
subject to a proposed transfer, "Permitted Transferee" means (1) any stockholder
owning more than ten percent (10%) of the equity of such corporation as of the
Initial Issuance Date, (2) any Permitted Transferee of such stockholder, (3) the
survivor of a merger or consolidation of such corporation or (4) any person who
transferred to such corporation the Class B Common Shares that are the subject
of the proposed transfer.
(F) In the case of a Holder which is an employee benefit or employee
stock ownership plan or a trustee therefor, "Permitted Transferee" shall include
any beneficiary of such plan (or the Permitted Transferee of such beneficiary)
but only as to shares distributable to such beneficiary pursuant to the plan.
(G) In the case of a Holder who is the executor, administrator or
personal representative of the estate of a deceased Holder, guardian or
conservator of the estate of a disabled Holder or who is a trustee of the estate
of a bankrupt or insolvent Holder, "Permitted Transferee" means a Permitted
Transferee of such deceased, disabled, bankrupt or insolvent Holder as
determined pursuant to this paragraph 6.1(i).
(ii) Notwithstanding anything to the contrary set forth
herein, any holder of Class B Common Shares may pledge his Class B
Common Shares to a pledgee pursuant to a bona fide pledge of such
shares as collateral security for indebtedness due to the pledgee,
provided that such shares may not be transferred to or registered in
the name of the pledgee unless such pledgee is a Permitted Transferee.
In the event of foreclosure or other similar action by the pledgee.
such pledged Class B Common Shares shall automatically, without any act
or deed on the part of the Corporation or any other person, be
converted into Common Shares on a share-for-share basis, unless within
five business days after such foreclosure or similar event such pledged
shares are returned to the pledger or transferred to a Permitted
Transferee of the pledger.
(iii) For purposes of this paragraph 6.1.
(A) The relationship of any person that is derived by or through legal
adoption shall be considered a natural one.
(B) Each joint owner of Class B Common Shares shall be considered a
Holder of such shares.
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(C) A minor for whom Class B Common Shares are held pursuant to a
Uniform Gifts to Minors Act or similar law shall be considered a Holder of such
shares.
(D) Unless otherwise specified, the term "person" means both natural
persons and legal entities.
(E) The giving of a proxy in connection with a solicitation of proxies
subject to the provisions of Section 14 of the Securities Exchange Act of 1934
(or any successor provision thereof) and the rules and regulations promulgated
thereunder shall not be deemed to constitute the transfer of an interest in the
Class B Common Shares which are the subject of such proxy.
(iv) Any purported transfer of Class B Common Shares other
than to a Permitted Transferee shall automatically, without any further
act or deed on the part of the Corporation or any other person, result
in the conversion of such shares into Common Shares on a
share-for-share basis, effective on the date of such purported
transfer. The Corporation may, as a condition to transfer or
registration of transfer of Class B Common Shares to a purported
Permitted Transferee, require that the record holder establish to the
satisfaction of the Corporation, by filing with the transfer agent an
appropriate affidavit or certificate or such other proof as the
Corporation shall deem necessary, that such transferee is a Permitted
Transferee.
6.2 Anything in this Article IV to the contrary notwithstanding but
subject to the provisions of paragraph 6.5, no Class B Common Share may be held
of record but not beneficially by a broker or dealer in securities, a bank or
voting trustee or a nominee of any such, or otherwise held of record but not
beneficially by a nominee of the beneficial owner of such share other than (i)
by an employee benefit or employee stock ownership plan or a trustee therefor or
(ii) by a trustee of a trust which would be a Permitted Transferee pursuant to
paragraph 6.1(i) (A) (2) or 6.1(i) (A) (3) (any such form of prohibited holding
being referred to herein as holding in "street" or nominee name); provided,
however, that if any person establishes to the satisfaction of the Corporation
in accordance with this paragraph 6.2 that he is the beneficial owner of any
such Class B Common Shares, the Corporation shall issue such share in the name
of such beneficial owner. Any such beneficial owner who desires to have Class B
Common Shares issued in his name in the circumstances described in this
paragraph 6.2 shall file an affidavit or certificate with the Secretary of the
Corporation setting forth the name and address of such beneficial owner and
certifying that he is the beneficial owner of the Class B Common Shares in
question.
6.3 The Corporation shall note on the certificates representing the
Class B Common Shares that there are restrictions on transfer and registration
of transfer to the extent imposed by paragraph 6.1.
6.4 (i) For purposes of this paragraph 6, "beneficial ownership" shall
mean possession of the power to vote or to direct the vote or to dispose of or
to direct the disposition of the Class B Common Share in question, and a
beneficial owner" of a Class B Common Share shall be the person having
beneficial ownership thereof.
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(ii) The Board of Directors may, from time to time, establish
practices and procedures and promulgate rules and regulations, in
addition to those set forth in this Article IV, and amend or revoke any
such, regarding the evidence necessary to establish entitlement of any
transferee or purported transferee of Class B Common Shares to be
registered as a Permitted Transferee. Should tee transferee or
purported transferee of any share wish to contest any decision of the
Corporation on the question whether the transferee or purported
transferee has established entitlement to be registered as a Permitted
Transferee of Class B Common Shares, then the Board of Directors shall
in its sole discretion make the final determination.
6.5 The restrictions on transfer set forth in paragraph 6.1 and the
remaining provisions of paragraph 6 (other than this paragraph 6.5) shall
automatically, without any act or deed on the part of the Corporation or any
other person, be cancelled (as to all but not less than all Class B Common
Shares then outstanding or thereafter issued) and of no further force and effect
if at any time the Board of Directors, in its sole discretion, determines that
the restrictions oil transfer set forth in paragraph 6.1 have a material adverse
effect on the liquidity, marketability or market value of the outstanding Common
Shares. Such cancellation shall be effective as of the date of such
determination by the Board of Directors or as of such later date as the Board
may determine. Written notice of such determination and rescission shall be
given to all holders of Class B Common Shares as of such date as shown on the
records of the Company or its transfer agent. No such determination by the Board
of Directors shall affect the validity of any act or the effect of any provision
of this Article IV which occurred prior to the effective date of such
cancellation. In the event that a holder of Class B Common Shares transfers such
shares after the effective date of such cancellation to a non-Permitted
Transferee, such transfer shall presumptively be deemed to be an election by
such holder to convert such Class B Common Shares into Common Shares immediately
prior to the effectiveness of such transfer unless the transferring holder or
his agent shall give written notice to the Company or its transfer agent at the
time of delivery of the certificates representing the Class B Common Shares to
be transferred that the holder and the transferee of such Class B Common Shares
intend to transfer the Class B Common Shares and that no such conversion is
intended.
7. Other Matters.
7.1 In case the Corporation shall at any time issue to the holders of
its Common Shares as such options or rights to subscribe for Common Shares
(including shares held in the Corporation's treasury) or any other security
(whether of the Corporation or otherwise), the Corporation shall issue such
options or rights to the holders of the Class B Common Shares in the respective
amounts equal to the amounts that such holders would have been entitled to
receive had their respective Class B Common Shares been converted into Common
Shares on the day prior to the date for the determination of the holders of
Common Shares entitled to receive such options or rights.
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Subdivision C
Cumulative Voting
Notwithstanding the respective voting rights of the holders of the
Common Shares, Class B Common Shares and Serial Preferred Shares, no holder of
shares of any class shall have the right to vote cumulatively in the election of
Directors.
ARTICLE V
The Corporation may purchase, from time to time, and to the extent
permitted by the laws of Ohio, shares of any class of stock issued by it. Such
purchases may be made either in the open market or at private or public sale, in
such manner and amount, from such holder or holders and at such prices as the
Board of Directors of the Corporation shall from time to time determine, and the
Board of Directors is hereby empowered to authorize such purchases from time to
time without any vote of the holders of any class of shares now or hereafter
authorized and outstanding at the time of any such purchase.
ARTICLE VI
(a) Notwithstanding any provisions of the laws of the State of Ohio now
or hereafter in force requiring, for any purpose, the vote of the holders of
shares entitling them to exercise two-thirds or any other proportion (but less
than all) of the voting power of the Corporation or of any class or classes of
shares thereof and subject to the provisions of Article VI (b) hereof, such
action (unless otherwise expressly prohibited by statute) may be taken by a vote
of the holders of shares entitling them to exercise a majority of the voting
power of the Corporation or of such class or classes.
(b) If a shareholder vote is required by law, then except as provided
in the last paragraph of this Article VI (b) the affirmative vote of the holders
of shares entitling them to exercise at least two-thirds of the voting power of
the Corporation, given in person or by proxy at a meeting called for the
purpose, shall be necessary:
(i) to approve the lease, sale, exchange, transfer or other
disposition by the Corporation of all, or substantially all, of its
assets or business to a Related Person (as hereinafter defined ), an
affiliate of a Related Person or an associated person of a Related
Person; or the lease, sale, exchange, transfer or other disposition to
the Corporation or a subsidiary of the Corporation of all, or
substantially all, of the assets of a Related Person, an affiliate of a
Related Person or an associated person of a Related Person: or the
consolidation of the Corporation with or its merger into a Related
Person, an affiliate of a Related Person or an associated person of a
Related Person; or the merger into the Corporation or a subsidiary of
the Corporation of a Related Person, an affiliate of a Related Person
or an associated person of a Related Person; or a combination or a
majority share acquisition in which the Corporation is the acquiring
corporation and its voting shares are issued or transferred to a
Related Person, an affiliate of a Related Person, shareholders of a
Related Person or an associated person,
14
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(ii) to approve any agreement, contract or other arrangement
with a Related Person or an affiliate of a Related Person or an
associated person of a Related Person providing for any of the
transactions described in subparagraph (i) above;
(iii) to adopt any amendment of the Amended and Restated
Articles of Incorporation of the Corporation which changes the
provisions of this Article VI (b ).
For the purpose of this Article VI (b), a "Related Person" in respect
of a given transaction shall be any person, partnership, corporation or firm
which, together with its affiliates and associated persons, owns of record or
beneficially, directly or indirectly, ten percent (10%) or more of the shares of
any outstanding class of shares of the Corporation entitled to vote upon such
transaction, as of the record date used to determine the shareholders of the
Corporation entitled to vote upon such transactions; and "affiliate" of a
Related Person shall be any person, individual, joint venture, trust,
partnership or corporation which, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Related Person; and "associated person" of a Related Person shall be any
officer or Director or any beneficial owner, directly or indirectly, of ten
percent (10%) or more of any class of equity security of such Related Person or
any of its affiliates; and the terms "persons," "combinations," "majority share
acquisition" and "acquiring corporation" shall have the same meaning as that
contained in Section 1701.01 of the Ohio General Corporation Law or any similar
provision hereafter Mooted. The determination of the Board of Directors of the
Corporation, based on information known to the Board of Directors and made in
good faith, shall be conclusive as to whether any person, partnership,
corporation or firm is a Related Person or affiliate or associated person as
defined in this Article VI (b).
The provisions of this Article VI(b) shall not apply to any proposal
submitted to shareholders if (i) such proposal has been approved and recommended
by written resolution of the Board of Directors of the Corporation adopted prior
to the acquisition of the ten percent (10%) interest in shares of the
Corporation, as aforesaid, by the Related Person or its affiliates or associated
persons, and (ii) the terms of any inducements made to officers or Directors of
the Corporation, if any, which are not made available to an shareholders have
been disclosed to all shareholders.
ARTICLE VII
The preemptive right to purchase additional shares or any other securities of
the Corporation is hereby expressly denied to holders of shares of all classes.
ARTICLE VIII
These Amended and Restated Articles of Incorporation shall supersede
the existing Articles of Incorporation of the Corporation.
15
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
INVACARE CORPORATION
A. MALACHI MIXON III, Chairman, President and Chief Executive Officer,
and DALE C. LaPORTE, Secretary, of INVACARE CORPORATION, an Ohio corporation
(the "Company"), do hereby certify that at a meeting of the Company's
shareholders duly called and held on May 24, 1991, at which meeting a quorum of
shareholders was present in person or by proxy, the following resolutions to
amend the Amended and Restated Articles of Incorporation of the Company were
duly adopted by the affirmative vote of holders of shares entitling them to
exercise a majority of the voting power of the Company:
RESOLVED, That Article IV of the Company's Amended and Restated
Articles of Incorporation is hereby amended to increase the number of
authorized Common Shares, without par value, of the Company from
Eighteen Million (18,000,000) to Twenty-Five Million (25,000,000) by
deleting in its entirety the current first full, introductory paragraph
of Article IV and replacing it with the following:
"The authorized number of shares of capital stock of the Corporation
shall be Thirty-Seven Million Three Hundred Thousand (37,300,000), of
which Twenty-Five Million (25,000,000) shall be Common Shares, without
par value, Twelve Million (12,000,000) shall be Class B Common Shares,
without par value, and Three Hundred Thousand (300,000) shall be Serial
Preferred Shares, without par value."
RESOLVED FURTHER, That the President and Secretary of the Company be
and they are hereby authorized and directed to execute and file in the
office of the Secretary of State of Ohio an appropriate Certificate of
Amendment, pay any filing fees and take any and all other actions in
order to carry out the intent and purposes of the preceding resolution
and render effective such amendment to the Amended and Restated
Articles of Incorporation.
IN WITNESS WHEREOF, said A. Malachi Mixon III, Chairman, President and
Chief Executive Officer, and Dale C. LaPorte, Secretary, acting for and on
behalf of the Corporation, have hereunto subscribed their names this 24th day of
May, 1991.
16
<page>
INVACARE CORPORATION
By: /s/ A. Malachi Mixon, III
--------------------------------
A. Malachi Mixon, III, Chairman,
President and Chief Executive
Officer
And: /s/ Dale C. LaPorte
--------------------------------
Dale C. LaPorte, Secretary
17
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
INVACARE CORPORATION
A. MALACHI MIXON III, Chairman, President and Chief Executive Officer,
and DALE C. LaPORTE, Secretary, of INVACARE CORPORATION, an Ohio corporation
(the "Company"), do hereby certify that at a meeting of the Company's
shareholders duly called and held on May 27, 1992, at which meeting a quorum of
shareholders was present in person or by proxy, the following resolutions to
amend the Amended and Restated Articles of Incorporation of the Company were
duly adopted by the affirmative vote of holders of shares entitling them to
exercise a majority of the voting power of the Company:
RESOLVED, That Article IV of the Company's Amended and Restated
Articles of Incorporation is hereby amended to increase the number of
authorized Common Shares, without par value, of the Company from
Twenty-Five Million (25,000,000) to Fifty Million (50,000,000) by
deleting in its entirety the current first full, introductory paragraph
of Article IV and replacing it with the following:
"The authorized number of shares of capital stock of the Corporation
shall be Sixty-Two Million Three Hundred Thousand (62,300,000), of
which Fifty Million (50,000,000) shall be Common Shares, without par
value, Twelve Million (12,000,000) shall be Class B Common Shares,
without par value, and Three Hundred- Thousand (300,000) shall be
Serial Preferred Shares, without par value."
RESOLVED FURTHER, That the President and Secretary of the Company be
and they are hereby authorized and directed to execute and file in the
office of the Secretary of Ste of Ohio an appropriate Certificate of
Amendment, pay any filing fees and take any and all other actions in
order to carry out the intent and purposes of the preceding resolution
and render effective such amendment to the Amended and Restated
Articles of Incorporation.
IN WITNESS WHEREOF, said A. Malachi Nixon III, Chairman, President and
Chief Executive Officer, and Dale C. LaPorte, Secretary, `acting for and on
behalf of the Corporation, have hereunto subscribed their names this 27th day of
May, 1992.
18
<page>
INVACARE CORPORATION
By: /s/ A. Malachi Mixon, III
--------------------------------
A. Malachi Mixon, III, Chairman,
President and Chief Executive
Officer
And: /s/ Dale C. LaPorte
-------------------------------
Dale C. LaPorte, Secretary
19
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
INVACARE CORPORATION
A. MALACHI MIXON III, Chairman, President and Chief Executive Officer,
and THOMAS R. MIKLICH, Secretary, of INVACARE CORPORATION, an Ohio corporation
(the "Company"), do hereby certify that at a meeting of the Company's
shareholders duly called and held on May 22, 1996, at which meeting a quorum of
shareholders was present in person or by proxy , the following resolutions to
amend the Amended and Restated Articles of Incorporation of the Company were
duly adopted in accordance with the Ohio Revised Code by the affirmative vote of
holders of shares entitling them to exercise a majority of the voting power of
the Company:
RESOLVED, that Article IV of the Company's Amended and Restated
Articles of Incorporation is hereby amended to increase the number of
authorized Common Shares, without par value, of the Company from Fifty
Million (50,000,000) to One Hundred Million (100,000,000) by deleting
in its entirety the current first full, introductory paragraph of
Article IV and replacing it with the following:
"The authorized number of shares of capital stock of the Corporation
shall be One Hundred Twelve Million Three Hundred Thousand
(112,300,000), of which One Hundred Million (100,000,000) shall be
Common Shares, without par value, Twelve Million (12,000,000) shall be
Class B Common Shares, without par value, and Three Hundred Thousand
(300,000) shall be Serial Preferred Shares, without par value."
RESOLVED FURTHER, that the President and Secretary of the Company be
and they are hereby authorized and directed to execute and file in the
office of the Secretary of State of Ohio an appropriate Certificate of
Amendment, pay any filing fees and take any and all other actions in
order to carry out the intent and purposes of the preceding resolution
and render effective such amendment to the Amended and Restated
Articles of Incorporation.
IN WITNESS WHEREOF, said A. Malachi Mixon III, Chairman, President and
Chief Executive Officer, and Thomas R. Miklich, Secretary, acting for and on
behalf of the Corporation, have hereunto subscribed their names this 10th day of
June, 1996.
INVACARE CORPORATION
By: /s/ A. Malachi Mixon, III
---------------------------------
A. Malachi Mixon, III, Chairman,
President and Chief Executive
Officer
And: /s/ Thomas R. Miklich
---------------------------------
Thomas R. Miklich, Secretary
20