RESTATED CERTIFICATE OF INCORPORATION
OF
BEL FUSE INC.
DATED: AUGUST 10, 1998
Pursuant to the provisions of Section 14A:9-5 of the New Jersey Business
Corporation Act, Bel Fuse Inc. (the "Corporation") adopts the following Restated
Certificate of Incorporation:
ARTICLE I
The name of the Corporation is BEL FUSE INC.
ARTICLE II
The address of the current registered office of the Corporation in this
state is 80 Main Street, West Orange, New Jersey 07052.
ARTICLE III
The name of the current registered agent therein and in charge thereof upon
whom process against this Corporation may be served is Robert H. Simandl.
ARTICLE IV
The number of directors constituting the current Board of Directors is
seven; the names and addresses of the current directors are as follows:
Daniel Bernstein Peter Gilbert
198 Van Vorst Street Gilbert Manufacturing Co.
Jersey City, NJ 07302 1107 Broadway, Suite 1310
New York, NY 10010
John S. Johnson Howard B. Bernstein
P.O. Box 1593 P.O. Box 282
Marco Island, FL 34146 Hazlet, NJ 07730
John F. Tweedy Elliot Bernstein
26 Huron Road 198 Van Vorst Street
Floral Park, NY 11001 Jersey City, NJ 07302
Robert H. Simandl
80 Main Street
West Orange, NJ 07052
ARTICLE V
The objects for which this Corporation is formed are to engage in any
activity for which corporations may be organized under the New Jersey Business
Corporation Act.
ARTICLE VI
6.0. Authorized Capital. The total number of shares of all classes of
capital stock that the Corporation shall have authority to issue shall be
21,000,000, consisting of 1,000,000 shares of preferred stock, without par value
("Preferred Stock"), and 20,000,000 shares of common stock, consisting of
10,000,000 shares of Class A Common Stock, par value $0.10 per share ("Class A
Common Stock"), and 10,000,000 shares of Class B Common Stock, par value $0.10
per share ("Class B Common Stock" and, together with the Class A Common Stock,
"Common Stock").
6.1. Terms of the Class A Common Stock and Class B Common Stock. The
powers, preferences and rights of the Class A Common Stock and the Class B
Common Stock, and the qualifications, limitations and restrictions thereof,
shall be in all respects identical except as otherwise required by law or
expressly provided in this Restated Certificate of Incorporation, as amended.
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6.1.1. Voting. Except as otherwise provided by the Board of Directors in
fixing the voting rights of any series of Preferred Stock in accordance with
Section 6.2 of this Article VI or as otherwise required by law or expressly
provided in this Restated Certificate of Incorporation, voting power in the
election of directors and for all other purposes shall be vested exclusively in
the holders of Class A Common Stock, and each holder of Class A Common Stock
shall be entitled to one vote for each share of Class A Common Stock held.
Notwithstanding anything to the contrary contained in this Restated Certificate
of Incorporation, no action may be taken without the affirmative vote of a
majority of the votes cast by the holders of the outstanding shares of Class A
Common Stock with respect to any (i) amendment of this Restated Certificate of
Incorporation, (ii) merger or consolidation of the Corporation with one or more
other corporations, (iii) sale, conveyance, lease, mortgage, pledge, or exchange
of all or substantially all of the Corporation's property or assets or (iv)
liquidation, dissolution, or winding up of the Corporation, except as otherwise
provided in the New Jersey Business Corporation Act. The Class B Common Stock
shall have no voting rights on any matters except as otherwise required by law
or expressly provided in this Restated Certificate of Incorporation.
6.1.2. Dividends and Other Distributions.
(a) Cash Dividends. Cash dividends shall be payable to the record
holders of Class A Common Stock and Class B Common Stock only as and when
declared by the Board of Directors out of funds legally available therefor.
Subject to the foregoing, cash dividends declared on shares of Class B
Common Stock in any calendar year will not be less than 5% higher per share
annually than the annual amount of cash dividends per share declared in
such calendar year on shares of Class A Common Stock. Without limiting the
provisions of the preceding sentence, the Board of Directors will not
declare a cash dividend on shares of Class A Common Stock unless at the
same time it declares a cash dividend on shares of Class B Common Stock
(payable on the same payment date as the dividends then being declared on
Class A Common Stock) in an amount which, together with all prior cash
dividend payments in the calendar year, is at least 5% greater than the
cash dividend then being declared on Class A Common Stock, together with
all
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prior cash dividend payments declared on Class A Common Stock in such
calendar year. The Board of Directors may at any time declare a cash
dividend on shares of Class B Common Stock without declaring a cash
dividend on shares of Class A Common Stock.
(b) Other Dividends and Distributions. Each share of Class A Common
Stock and each share of Class B Common Stock shall have identical rights
with respect to dividends (other than cash) and distributions (including
distributions in connection with any recapitalization, and upon
liquidation, dissolution or winding up of the Corporation) when and as
declared in the form of stock or other property of the Company; provided
that dividends or other distributions payable on Common Stock in shares of
Common Stock shall be made to all holders of Common Stock and may be made
only as follows: (i) in shares of Class B Common Stock to the record
holders of Class A Common Stock and to the record holders of Class B Common
Stock; or (ii) in shares of Class A Common Stock to the record holders of
Class A Common Stock and in shares of Class B Common Stock to the record
holders of Class B Common Stock.
6.1.3. Convertibility. Except as described below, neither the Class A
Common Stock nor the Class B Common Stock shall be convertible into another
class of Common Stock or any other security of the Corporation.
(a) All outstanding shares of Class B Common Stock may be converted
into shares of Class A Common Stock on a share-for-share basis by
resolution of the Board of Directors if, as a result of the existence of
the Class B Common Stock, either the Class A Common Stock or the Class B
Common Stock is, or both are, excluded from quotation on the National
Association of Securities Dealers, Inc. Automated Quotation System National
Market System (the "NASDAQ/NMS") or, if such shares are quoted on another
national quotation system or listed on a national securities exchange, from
trading on the principal national quotation system or principal national
securities exchange on which such securities are traded.
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(b) All outstanding shares of Class B Common Stock shall be
immediately converted into shares of Class A Common Stock on a
share-for-share basis if at any time the number of outstanding shares of
Class A Common Stock as reflected on the stock transfer records of the
Corporation falls below 10% of the aggregate number of outstanding shares
of Common Stock. For purposes of the immediately preceding sentence, any
shares of Common Stock repurchased or otherwise acquired by the Corporation
and held as treasury shares shall not be deemed "outstanding" from and
after the date of acquisition.
(c) In the event of any conversion of the Class B Common Stock
pursuant to subsection (a) or (b) of this Section 6.1.3, certificates that
formerly represented outstanding shares of Class B Common Stock will
thereafter be deemed to represent a like number of shares of Class A Common
Stock and all shares of Common Stock authorized by this Restated
Certificate of Incorporation shall be deemed to be shares of Class A Common
Stock.
6.1.4. Class B Protection.
(a) If, at any time after the effective time of the amendment of
Article VI which first authorizes the issuance of Class A Common Stock and
Class B Common Stock (the "Effective Time"), any Person or group, other
than a 4% Shareholder (in each case as hereinafter defined in this Section
6.1.4), acquires beneficial ownership of shares representing 10% or more of
the number of then outstanding shares of Class A Common Stock, and such
Person or group (a "Significant Shareholder") does not then beneficially
own an equal or greater percentage of all then outstanding shares of Common
Stock, all of which Common Stock must have been acquired by such Person or
group after the Effective Time, such Significant Shareholder must, within a
ninety-day period beginning the day after becoming a Significant
Shareholder, make a public cash tender offer to acquire additional shares
of Common Stock as provided in this Section 6.1.4 (a "Class B Protection
Transaction"). The 10% ownership threshold of the number
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of shares of Class A Common Stock which triggers a Class B Protection
Provision may not be waived by the Board of Directors, nor may this
threshold be amended without shareholder approval, including a majority
vote of the votes cast by the then outstanding shares of Class B Common
Stock entitled to vote, tabulated separately as a class.
(b) In each Class B Protection Transaction, the Significant
Shareholder must make a public cash tender offer to acquire from the
holders of Class B Common Stock at least that number of additional shares
of Class B Common Stock (the "Additional Shares") determined by (i)
multiplying the percentage of the number of outstanding shares of Class A
Common Stock that are beneficially owned and acquired after the Effective
Time by such Significant Shareholder by the total number of shares of Class
B Common Stock outstanding on the date such Person or group became a
Significant Shareholder, and (ii) subtracting therefrom the number of
shares of Class B Common Stock beneficially owned by such Significant
Shareholder on the date such Person or group became a Significant
Shareholder and which were acquired after the Effective Time (as adjusted
for stock splits, stock dividends and similar recapitalizations). The
Significant Shareholder must acquire all shares of Class B Common Stock
validly tendered and not withdrawn or, if the number of shares of Class B
Common Stock tendered to the Significant Shareholder, and not withdrawn,
exceeds the number of shares required to be acquired pursuant to this
subparagraph (b), the number of shares acquired from each tendering holder
shall be pro rata based on the percentage that the number of shares
tendered by such shareholder bears to the total number of shares tendered
and not withdrawn by all tendering holders.
(c) The cash offer price for any Additional Shares required to be
purchased by the Significant Shareholder pursuant to this Section 6.1.4
shall be the greatest of: (i) the highest price per share paid by the
Significant Shareholder for any Class A Common Share or any share of Class
B Common Stock during the six-month period ending on the date such Person
or group became a Significant Shareholder (or such shorter period after the
Effective Time if the date such Person or group became a
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Significant Shareholder is not more than six months following the Effective
Time; and (ii) the highest reported bid price for any share of Class A
Common Stock or Class B Common Stock (whichever is higher) on the
NASDAQ/NMS (or such other quotation system or securities exchange
constituting the principal trading market for either class of Common Stock)
on the business day preceding the date the Significant Shareholder makes
the tender offer required by this Section 6.1.4. For purposes of
subparagraph (d) below, the applicable date for each calculation required
by clauses (i) and (ii) of the preceding sentence shall be the date on
which the Significant Shareholder becomes required to engage in the Class B
Protection Transaction for which such calculation is required. In the event
that the Significant Shareholder has acquired shares of Class A Common
Stock or Class B Common Stock in the six-month period ending on the date
such Person or group becomes a Significant Shareholder for consideration
other than cash, the value of such consideration per share of Class A
Common Stock or Class B Common Stock, as the case may be, shall be as
determined in good faith by the Board of Directors.
(d) A Class B Protection Transaction shall also be required to be
effected by any Significant Shareholder each time that the Significant
Shareholder acquires after the Effective Time beneficial ownership of an
additional amount of shares of Class A Common Stock equal to or greater
than the next higher integral multiple of 5% in excess of 10% (e.g., 20%,
25%, 30%, etc.) of the outstanding shares of Class A Common Stock and such
Significant Shareholder does not then own an equal or greater percentage of
all then outstanding shares of Class B Common Stock that such Significant
Shareholder acquired after the Effective Time. Such Significant Shareholder
would be required to offer to buy that number of Additional Shares
prescribed by the formula set forth above; provided that, for purposes of
such formula, the date on which the Significant Shareholder acquired the
next higher integral multiple of 5% of the outstanding shares of Class A
Common Stock will be deemed to be the date on which such Person or group
became a Significant Shareholder.
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(e) If a Significant Shareholder fails to make a tender offer required
by the Class B Protection Provisions, or to purchase validly tendered and
not withdrawn shares (after proration, if any), the voting rights of all of
the shares of Class A Common Stock beneficially owned by such Significant
Shareholder which were acquired after the Effective Time will be
automatically suspended until completion of a Class B Protection
Transaction or until divestiture of the excess shares of Class A Common
Stock that triggered such requirement. To the extent that the voting power
of any shares of Class A Common Stock is so suspended, such shares will not
be included in the determination of aggregate voting shares for any
purpose.
(f) Neither the Class B Protection Transaction requirement nor the
related possibility of suspension of voting rights applies to any increase
in percentage beneficial ownership of shares of Class A Common Stock
resulting solely from a change in the total number of shares of Class A
Common Stock outstanding, provided that any acquisition after such change
which results in any Person or group having acquired after the Effective
Time beneficial ownership, of 10% or more of the number of then outstanding
shares of Class A Common Stock (or, after the last acquisition which
triggered the requirement for a Class B Protection Transaction, additional
shares of Class A Common Stock in an amount equal to the next higher
integral multiple of 5% in excess of the number of shares of Class A Common
Stock then outstanding) shall be subject to any Class B Protection
Transaction requirement that would be otherwise imposed pursuant to this
Section 6.1.4.
(g) In connection with subparagraphs (a) through (d) and (f) above,
the following shares of Class A Common Stock shall be excluded for the
purpose of determining the shares of Class A Common Stock beneficially
owned or acquired by any Person or group but not for the purpose of
determining shares outstanding:
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(i) shares beneficially owned by such Person or group, (or, in
the case of a group, shares beneficially owned by Persons that are
members of such group) immediately after the Effective Time:
(ii) shares acquired by will or by the laws of descent and
distribution, or by gift that is made in good faith and not for the
purpose of circumventing the Class B Protection Provisions, or by
termination or revocation of a trust or similar arrangement or by a
distribution from a trust or similar arrangement if such trust or
similar arrangement was created, and such termination, revocation or
distribution occurred or was effected, in good faith and not for the
purpose of circumventing the Class B Protection Provisions, or by
reason of the ability of a secured party (following a default) to
exercise voting rights with respect to, or to dispose of, shares that
had been pledged in good faith as security for a bona fide loan, or by
foreclosure of a bona fide pledge which secures a bona fide loan;
(iii) shares acquired upon issuance or sale by the Company;
(iv) shares acquired by operation of law (including a merger or
consolidation effected for the purpose of recapitalizing such Person
or reincorporating such Person in another jurisdiction but excluding a
merger or consolidation effected for the purpose of acquiring another
Person);
(v) shares acquired in exchange for Common Stock by a holder of
Common Stock (or by a parent, lineal descendant or donee of such
holder of Common Stock who received such Common Stock from such
holder) if the Common Stock so exchanged was acquired by such
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holder directly from the Company as a dividend on shares of Class A
Common Stock;
(vi) shares acquired by a plan of the Corporation qualified under
Section 401(a) of the Internal Revenue Code of 1986, as amended, or
any successor provision thereto, or acquired by reason of a
distribution from such a plan;
(vii) shares beneficially owned by a Person or group immediately
after the Effective Time which are thereafter acquired by an Affiliate
of such Person or group (or by the members of the immediate family (or
trusts for the benefit thereof) or any such Person or Affiliate) or by
a group which includes such Person or group or any such Affiliate; and
(viii) shares acquired indirectly through the acquisition of
securities, or all or substantially all of the assets, of a Person
that has a class of its equity securities registered under Section 12
(or any successor provision) of the Securities Exchange Act of 1934,
as amended (the "1934 Act").
Notwithstanding anything to the contrary contained in this 6.1.4, no
Person (and no group including such Person) shall be deemed to have
acquired after the Effective Time beneficial ownership of any shares of
Class A Common Stock owned by any other Person solely by reason of such
Person being or becoming an officer, director, executive, trustee,
executor, custodian, guardian, and/or other similar fiduciary or employee
of or for such other Person under circumstances not intended to circumvent
the provisions of this Section 6.1.4.
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(h) In connection with subparagraphs (a) through (d) and (f) above,
for purposes of calculating the number of shares of Common Stock
beneficially owned or acquired by a Person or group:
(i) shares of Common Stock acquired by gift shall be deemed to be
beneficially owned by such Person or member of a group if such gift
was made in good faith and not for the purpose of circumventing the
operations of this Section 6.1.4; and
(ii) only shares of Common Stock owned of record by such Person
or member of a group or held by others as nominees of such Person or
member of a group and identified as such to the Corporation shall be
deemed to be beneficially owned by such Person or group (provided that
shares of Common Stock with respect to which such Person or member of
a group has sole investment and voting power shall be deemed to be
beneficially owned thereby).
(i) All calculations with respect to percentage beneficial ownership
of issued and outstanding shares of either class of Common Shares shall be
based upon the number of issued and outstanding shares reported by the
Corporation on the last to be filed of (i) the Corporation's most recent
Annual Report on Form 10-K, (ii) its most recent Quarterly Report on Form
10-Q, (iii) its most recent Current Report on Form 8-K, and (iv) its most
recent definitive proxy statement filed with the Securities and Exchange
Commission.
(j) For purposes of this Section 6.1.4, the term "Person" means any
individual, partnership, joint venture, limited liability corporation,
corporation, association, trust, incorporated organization, government or
governmental department or agency or any other entity (other than the
Corporation). Subject to subparagraphs (g) and (h) above, "beneficial
ownership" shall be determined pursuant to Rule 13d-3 (as in
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effect of February 1, 1996) promulgated under the 1934 Act, and the
formation of existence of a "group" shall be determined pursuant to Rule
13d-5(b) (as in effect on May 1, 1998) promulgated under the 1934 Act, in
each case subject to the following additional qualifications:
(i) relationships by blood or marriage between or among any
Persons will not constitute any of such Persons as a member or a group
with any such other Person(s), absent affirmative attributes of
concerted action; and
(ii) any Person acting in his official capacity as a director or
officer of the Corporation shall not be deemed to beneficially own
shares where such ownership exists solely by virtue of such Person's
status as a trustee (or similar position) with respect to shares held
by plans or trusts for the general benefit of employees or former
employees of the Corporation, and actions taken or agreed to be taken
by a Person in such Person's official capacity as an officer or
director of the Corporation will not cause such Person to become a
member of a group with any other Person.
For purposes of this Section 6.1.4, an "Affiliate" of any Person means
any other Person directly or indirectly controlling of controlled by or
under direct or indirect common control with such Person. For purposes of
this definition, "control" when used with respect to any specified Person
means the possession of the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing. For purposes of this
Section 6.1.4, "4% Shareholder" means any Person that, alone or together
with any Affiliate, or any member of the immediate family (or trusts for
the benefit thereof) of any such Person or
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Affiliate, beneficially owned at June 9, 1998, at least 4% of the aggregate
number of shares of Existing Common Stock then outstanding.
6.1.5. Merger and Consolidation. In the event of a merger or consolidation
of the Corporation with or into another entity (whether or not the Corporation
is the surviving entity), the holders of Class B Common Stock shall be entitled
to receive the same amount and form of consideration per share as the per-share
consideration, if any, received by any holder of the Class A Common Stock in
such merger or consolidation.
6.1.6. Subdivision of Shares. If the Corporation shall in any manner split,
subdivide or combine the outstanding shares of Class A Common Stock or Class B
Common Stock, the outstanding shares of the other such class of Common Stock
shall be proportionally split, subdivided or combined in the same manner and on
the same basis as the outstanding shares of the other class of Common Stock have
been split, subdivided or combined.
6.1.7. Power to Sell and Purchase Shares. The Board of Directors shall have
the power to cause the Corporation to issue and sell all or any part of any
class of stock herein or hereafter authorized to such persons, firms,
associations or corporations, and for such consideration, as the Board of
Directors shall from time to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class, and as otherwise permitted by law. The Board
of Directors shall have the power to cause the Corporation to purchase, out of
funds legally available therefor, any class of stock herein or hereafter
authorized from such persons, firms, associations or corporations, and for such
consideration, as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise
permitted by law.
6.1.8. Increase or Decrease in Number of Shares. The number of authorized
shares of Class B Common Stock may be increased or decreased (but not below the
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number of shares then outstanding) by the affirmative vote of a majority of the
votes cast by the holders of the outstanding shares of the Class A Common Stock.
6.2. Preferred Stock. The Board of Directors shall have the power by
resolution to (i) provide for the issuance of shares of Preferred Stock in
series, (ii) determine the number of shares in any such series and (iii) fix the
designations, preferences, qualifications, limitations, restrictions, and
special or relative rights of the Preferred Stock or any series thereof.
6.3. Reclassification. At the Effective Time, and without any further
action on the part of the Corporation or its shareholders, each share of the
Corporation's Common Stock then issued (including shares held in the treasury of
the Corporation) (the "Existing Common Stock"), shall be automatically converted
into and reclassified as (i) one-half (1/2) of a fully paid and non-assessable
share of Class A Common Stock, and (ii) one-half (1/2) of a fully paid and
non-assessable share of Class B Common Stock. Any stock certificate that,
immediately prior to the Effective Time, represents shares of Existing Common
Stock, shall, from and after the Effective Time, automatically and without the
necessity of presenting the same for exchange, represent that number of shares
of Class A Common Stock and Class B Common Stock equal, in each case, to the
product obtained by multiplying (a) the number of shares of Common Stock
represented by such certificate prior to the Effective Time by (b) one-half
(1/2); provided, however, that no fractional shares of Common Stock shall be
issued to any holder of the Existing Common Stock or reflected on the transfer
records of the Corporation (based upon the number of shares owned by such holder
regardless of the number of certificates issued to such holder) by reason of the
reclassification provided for herein. As soon as practicable after the Effective
Time, the Corporation's transfer agent shall mail a letter of transmittal to
each record holder who would be entitled to receive a half share of Common
Stock. In lieu of issuing half shares, the Corporation shall pay to each holder
of such a half share, upon delivery of a properly executed letter of transmittal
accompanied by a stock certificate, an amount in cash equal to the greater of
(i) the average closing price per share of the Common Stock on the NASDAQ/NMS
for the fifteen trading days immediately preceding the date on which the
Effective Time occurs and (ii) the
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closing price per share of Common Stock on the NASDAQ/NMS on the trading day
immediately preceding the Effective Time occurs.
ARTICLE VII
The power to alter, amend, or repeal the By-Laws or to adopt new By-Laws
shall be vested in the Board of Directors; provided, however, that any By-Law or
amendment thereto as adopted by the Board of Directors may be altered, amended
or repealed by vote of the shareholders entitled to vote for the election of
directors, or a new By-Law in lieu thereof may be adopted by vote of such
shareholders. No By-Law which has been altered, amended, or adopted by such a
vote of the shareholders may be altered, amended or repealed by vote of the
directors until two years shall have expired since such action by vote of such
shareholders.
ARTICLE VIII
8.0. The meetings of the shareholders shall be held at the principal office
of the Corporation or at such other place within the State of New Jersey as may
from time to time be designated by the Board of Directors and stated in the
notice of the meeting.
8.1. The Board of Directors may hold their meetings within the State of New
Jersey or outside the state as may be stated in the notice of the meeting, which
shall designate the time and place thereof.
8.2. The Board of Directors may designate from their number an Executive
Committee and Finance Committee, and one or more other committees which shall,
in the intervals between its meetings and to the extent provided by the By-Laws,
exercise all of the powers of the Board of Directors so far as it may lawfully
do so in the management of the business and affairs of the Corporation.
ARTICLE IX
Shareholders of the Corporation shall not have any pre-emptive rights.
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ARTICLE X
10.0. Classification of Directors. The Board of Directors of the
Corporation shall be divided into three classes (Class 1, Class 2 and Class 3),
the respective terms of office of which shall end in successive years. The
number of directors in each class shall be consistent with all limitations
specified in the By-Laws and shall be as nearly equal as possible. Unless they
are elected to fill vacancies, the directors in each class shall be elected to
hold office until the third successive annual meeting of shareholders after
their election and until their successors shall have been elected and qualified.
At each annual meeting of shareholders, the directors of only one class shall be
elected, except directors who may be elected to fill vacancies.
10.1. Filling of Vacancies in the Board of Directors Caused by an Increase
in the Number of Directors. Any directorship to be filled by reason of an
increase in the number of directors may be filled only by the affirmative vote
of three-quarters of the directors. The Board of Directors shall specify the
class in which a director so elected shall serve. Any director so elected by the
Board of Directors shall hold office only until the next annual meeting of the
shareholders and until his successor shall have been elected and qualified,
notwithstanding that the term of office of the other directors in the class of
which he is a member does not expire at the time of such meeting. His successor
shall be elected by the shareholders to a term of office which shall expire at
the same time as the term of office of the other directors in the class to which
he is elected.
10.2. Removal of Directors. One or more of the directors may be removed,
but only for cause, by the affirmative vote of two-thirds of the shares entitled
to vote for the election of directors. The Board of Directors, acting by at
least a two-thirds affirmative vote of the entire Board of Directors, may also
remove one or more directors, but only for cause, and may suspend any director
for a reasonable period of time pending a final determination that cause exists
for removal.
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10.3. Amendment. This Article X may not be altered, amended or repealed
except by an affirmative vote of the holders of at least two-thirds of the
shares entitled to vote thereon.
ARTICLE XI
11.0. Vote Required For Business Combinations. In addition to any other
voting requirement imposed by law, by contract, by this Restated Certificate of
Incorporation, including any amendments thereto, and the By-Laws of the
Corporation and, except as otherwise expressly provided in Section 11.1 of this
Article XI, any Business Combination other than a Business Combination involving
the adoption of any plan or proposal for the liquidation or dissolution of the
Corporation shall require the affirmative vote of the holders of (i) at least
80% of the shares entitled to vote thereon and (ii) at least a majority of the
shares entitled to vote thereon excluding shares held by Related Persons and
their Affiliates involved in the Business Combination. Any Business Combination
involving a proposed liquidation or dissolution of the Corporation shall require
the affirmative vote of the holders of (i) at least 80% of the shares entitled
to vote thereon and (ii) at least a majority of the shares entitled to vote
thereon excluding shares voting in favor of the liquidation or dissolution held
by Related Persons and their Affiliates.
11.1. When Higher Vote is Not Required. The vote required by Section 11.0
of this Article XI shall not be applicable with respect to any particular
Business Combination if the conditions of either sub-sections 11.1.1 or 11.1.2
of this Section 11.1 are met with respect to such Business Combination, in which
event such Business Combination shall require only such affirmative vote (if
any) as is required by law, by contract, by any other provision of this Restated
Certificate of Incorporation, including any amendments thereto, or by the
By-Laws of the Corporation.
11.1.1. Approval by the Board of Directors. The Business Combination shall
have been approved by at least a majority of the Continuing Directors of the
Corporation at any time prior to its consummation.
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11.1.2. Price and Form of Consideration; Other Requirements. Each of the
following conditions shall have been met with respect to the applicable Business
Combination:
(a) The aggregate amount of cash and the Market Value as of the date
of a binding agreement for the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
outstanding capital stock of the Corporation in such Business Combination
shall be at least equal to the Minimum Price Per Share;
(b) The consideration to be received by holders of each class or
series of outstanding stock shall be in cash or in the same form as the
Related Person involved in the Business Combination has previously paid for
shares of such class or series of stock. If such Related Person has paid
for shares of any class of stock with varying forms of consideration, the
form of consideration for such class of stock shall be either cash or the
form used to acquire the largest number of shares of such class of stock
previously acquired by the Related Person;
(c) Such Related Person shall not have acquired any additional shares
of the Corporation's outstanding voting stock or securities convertible
into or exchangeable for such stock except as a part of the transaction
which resulted in such Related Person becoming a Related Person;
(d) Prior to the consummation of such Business Combination, such
Related Person shall not have directly or indirectly (i) received the
benefit (except proportionately as a shareholder) of any loans, advances,
guarantees, pledges or other financial assistance or tax credits provided
by the Corporation, or (ii) made or caused to be made any major change in
the Corporation's business or equity capital structure without the
unanimous approval of the Continuing Directors; and
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(e) A proxy statement responsive to the requirements of the 1934 Act
shall have been mailed to all holders of the Corporation's voting stock for
the purpose of soliciting shareholder approval of such Business
Combination. Such proxy statement shall contain at the front thereof, in a
prominent place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing Directors,
or any of them, may have furnished in writing and, if deemed advisable by a
majority of the Continuing Directors, an opinion of a reputable investment
banking firm as to the fairness (or lack of fairness) of the terms of such
Business Combination, from the point of view of the shareholders. The
investment banking firm shall be selected by a majority of the Continuing
Directors, furnished with all information it reasonably requests and paid a
reasonable fee for its services upon receipt by the Corporation of such
opinion.
11.2. Determination of Certain Matters. The Continuing Directors of the
Corporation shall, by majority vote, have the power and duty to determine for
the purposes of this Article XI, on the basis of information known to them,
after reasonable inquiry, all questions arising thereunder, including whether a
Person is a Related Person, the number of shares of capital stock beneficially
owned by any Person, whether a Person is an Affiliate of another, the value of
the net assets which are the subject of any Business Combination, and the value
of consideration to be received for the issuance or transfer of securities by
the Corporation or any of its Subsidiaries in any Business Combination.
11.3. No Effect on Fiduciary Obligations. Nothing contained in this Article
XI shall be construed to relieve any Related Person from any fiduciary
obligation imposed by law.
11.4. Definitions. For the purpose of this Article XI, the following
definitions shall apply:
"Business Combination" means
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(i) any merger or consolidation of the Corporation or any Subsidiary
with or into (A) any Related Person or (B) any other corporation or other
person or entity (whether or not itself a Related Person) which, after such
merger or consolidation, would be an Affiliate of a Related Person, or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to or
with any Related Person of all, or substantially all, of the assets of the
Corporation, if not in the usual and regular course of the business
conducted by the Corporation, or
(iii) the issuance or transfer by the Corporation or any Subsidiary to
any Related Person, other than pursuant to a public offering of securities
registered with the Securities and Exchange Commission and approved by a
majority of the Continuing Directors, in exchange for cash, or securities
or other property (or a combination thereof) having an aggregate fair
market value of $5,000,000 or more, or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(v) any reclassification of securities (including any reverse stock
split), recapitalization, reorganization, merger or consolidation of the
Corporation with any of its Subsidiaries or any similar transaction
(whether or not with or into or otherwise involving a Related Person) which
has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or
indirectly owned by a Related Person.
"Related Person" means, in respect to any Business Combination, any
Person (other than the Corporation or any Subsidiary) who or which, as of
the record date for the determination of shareholders entitled to notice of
and to vote on such Business Combination, or immediately prior to the
consummation of such transaction,
(i) is (together with all Affiliates of such Person) the beneficial
owner, directly or indirectly, of not less than 10% of the voting power of
this Corporation, other than any Person who was the beneficial owner,
directly or indirectly, of not less
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than 10% of the voting power of this Corporation on the date this Article
XI was added to the Corporation's Restated Certificate of Incorporation, or
(ii) is an Affiliate of the Corporation and at any time within 3 years
prior thereto was (together with all Affiliates of such Person) the
beneficial owner, directly or indirectly, of not less than 10% of the
voting power of this Corporation, other than any Person who was the
beneficial owner, directly or indirectly, of not less than 10% of the
voting power of this Corporation on the date this Article XI was added to
the Corporation's Restated Certificate of Incorporation, or
(iii) is an assignee of or has otherwise succeeded to any shares of
the capital stock of the Corporation which were at any time within 3 years
prior thereto beneficially owned by any Related Person, and such assignment
or succession shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the meaning of the
Securities Act of 1933.
"Affiliate" means any Person that directly or indirectly controls, or
is controlled by, or is under common control with, another Person.
"Person" means any individual, firm, partnership, trust, business
association, corporation or other entity or any combination of them acting
together.
"Continuing Director" means a member of the Board of Directors who
either (i) was first elected as director prior to the date as of which a
Related Person proposing, or involved in, a Business Combination became a
Related Person, (ii) was designated at the time of his initial election as
director as a Continuing Director by a majority of the then Continuing
Directors or (iii) was a director at the time the Corporation's Restated
Certificate of Incorporation was amended to include this Article XI. If at
any time the Board of Directors consists of less than two Continuing
Directors, then no director on the Board of Directors will be deemed a
Continuing Director.
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"Market Value", in the case of capital stock of the Corporation listed
on an exchange or quoted (with respect to closing sales information) on the
NASDAQ/NMS, shall be the price of the last transaction, as of the date of
determination, (i) effected on the principal exchange on which the stock is
listed or, if not listed on any exchange, (ii) quoted on NASDAQ/NMS. In the
case of any property other than such capital stock, "Market Value" shall
mean fair market value.
"Minimum Price Per Share" means the highest of:
(i) the highest gross per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid or
agreed to be paid by the Related Person involved in the applicable
Business Combination for any shares of stock of the Corporation or any
Subsidiary acquired or agreed to be acquired by such Related Person
(x) within the five-year period immediately prior to the first public
announcement of the Business Combination (the "Announcement Date") or
(y) in the transaction in which such Related Person became a Related
Person, whichever is higher;
(ii) the Market Value per share on the Announcement Date; or
(iii) the Market Value per share on the date on which the Related
Person became a Related Person.
The calculation of the Minimum Price Per Share shall require
appropriate adjustments for capital changes, including, without
limitation, stock splits, stock dividends and reverse stock splits.
"Subsidiary" means any corporation of which a majority of any class of
equity security (as defined in Rule 3A11-1 of the General Rules and
Regulations under the 1934 Act, as in effect on January 1, 1979) is owned,
directly or indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Related Person set forth herein, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
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11.5. Amendment. This Article XI may not be altered, amended or repealed,
except by an affirmative vote of the holders of at least 80% of the shares
entitled to vote thereon; provided that such 80% vote shall not be required for
any amendment, alteration, change or repeal recommended to the shareholders by a
majority of the whole Board of Directors, but only if a majority of the
Continuing Directors approve the amendment, alteration, change or repeal as
well.
ARTICLE XII
In the event of a tender offer or other offer for the securities of the
Corporation, the Board of Directors shall consider all relevant factors with
respect to the impact of the offer upon the shareholders, employees and
customers of the Corporation and upon the Corporation's subsidiaries and the
communities served by the Corporation and such subsidiaries, and all relevant
financial, legal and other issues raised by the proposed offer. The Board of
Directors shall have the discretion to promote acceptance or encourage rejection
of an offer by all lawful means in the best interests of the Corporation.
ARTICLE XIII
Every person who is or was a director or officer of the Corporation, or any
such person who serves or served in any similar capacity with any other
enterprise at the request of the Corporation, shall be indemnified by the
Corporation to the fullest extent permitted by law against all expenses and
liabilities reasonably incurred by or imposed upon him in connection with any
proceeding to which he may be made, or threatened to be made, a party, or in
which he may become involved by reason of his being or having been a director or
officer of the Corporation, or of serving or having served such other enterprise
in such capacity, whether or not he is a director or officer of the Corporation,
or continues to serve such other enterprise in such capacity, at the time the
expenses or liabilities are incurred.
ARTICLE XIV
So long as permitted by law, no director of the Corporation shall be
personally liable to the Corporation or its shareholders for damages for breach
of any duty owed by such
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person to the Corporation or its shareholders; provided, however, that this
Article XIV shall not relieve any person from liability to the extent provided
by applicable law for any breach of duty based upon an act or omission (a) in
breach of such person's duty or loyalty to the Corporation or its shareholders,
(b) not in good faith or involving a knowing violation of law or (c) resulting
in receipt by such person of an improper personal benefit. No amendment to or
repeal of this Article XIV and no amendment, repeal or termination of
effectiveness of any law authorizing this Article XIV shall apply to or have any
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment,
repeal or termination of effectiveness.
ARTICLE XV
So long as permitted by law, no senior officer of the Corporation shall be
personally liable to the Corporation or its shareholders for damages for breach
of any duty owed by such person to the Corporation or its shareholders;
provided, however, that this Article XV shall not relieve any person from
liability to the extent provided by applicable law for any breach of duty based
upon an act or omission (a) in breach of such person's duty of loyalty to the
Corporation or its shareholders, (b) not in good faith or involving a knowing
violation of law or (c) resulting in receipt by such person of an improper
personal benefit. No amendment to or repeal of this Article XV and no amendment,
repeal or termination of effectiveness of any law authorizing this Article XV
shall apply to or have any effect on the liability or alleged liability of any
senior officer for or with respect to any acts or omissions of such senior
officer occurring prior to such amendment, repeal or termination of
effectiveness. For purposes of this Article XV, the term "senior officer" shall
mean the President and any Vice President of the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed on its behalf by its duly authorized officer as of the date first above
written.
BEL FUSE INC.
By: /s/ COLIN W. DUNN
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Colin W. Dunn, Vice President