ACTUANT CORPORATION
ARTICLES OF RESTATEMENT
The undersigned officer of Actuant Corporation (the "Corporation"), a
Wisconsin corporation, hereby certifies that:
1. The Board of Directors of the Corporation has adopted the
Restated Articles of Incorporation (the "Restated Articles") in
the form attached hereto as Exhibit A in accordance with Wis.
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Stat. (S) 180.1007.
2. The Restated Articles do not contain an amendment to the articles of
incorporation of the Corporation requiring shareholder approval.
3. The Restated Articles supersede the original articles of
incorporation, any restated articles of incorporation previously
adopted and all amendments to the original and any restated articles
of incorporation of the Corporation.
Executed this 30th day of January, 2001.
/s/ Robert C. Arzbaecher
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Robert C. Arzbaecher, President and
Chief Executive Officer
This document was drafted by:
Walter J. Skipper
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
Exhibit A
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RESTATED ARTICLES OF INCORPORATION
OF
ACTUANT CORPORATION
These Restated Articles of Incorporation supersede and take the place of
the heretofore existing Restated Articles of Incorporation and any amendments
thereto.
ARTICLE I.
Name
The name of the Corporation is Actuant Corporation.
ARTICLE II.
Purposes
The purposes for which this Corporation is organized are to engage in any
lawful activity within the purposes for which corporations may be organized
under the Wisconsin Business Corporation Law.
ARTICLE III.
Capital Stock
3.1 Number of Shares and Classes. The aggregate number of shares which
the Corporation shall have authority to issue is as follows:
(a) Class A Common Stock. 16,000,000 shares of Class A Common Stock,
having a par value of $.20 per share.
(b) Class B Common Stock. 1,500,000 shares of Class B Common Stock,
having a par value of $.20 per share.
(c) Cumulative Preferred Stock. 160,000 shares of Cumulative
Preferred Stock, having a par value of $1.00 per share.
3.2 Relative Rights of Class A and Class B Common Stock. The relative
rights and preferences of shares of Class A Common Stock and Class B Common
Stock are as follows:
(a) Voting. On all matters other than the election of the Board of
Directors, the holders of Class A Common Stock and Class B Common Stock (no
class voting as a separate class unless otherwise required by the Wisconsin
Business Corporation Law) shall possess full and equal voting power of one
vote per share. On the election of the Board of Directors,
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and except as otherwise provided below, the holders of the Class A Common
Stock, together with the holders of Cumulative Preferred Stock of all
series having voting power (no class voting as a separate class) shall
elect a maximum minority of the number of directors to be elected and the
holders of the Class B Common Stock shall elect a minimum majority of the
number of directors to be elected. Although the maximum minority of the
number of directors to be elected by the holders of the Class A Common
Stock, together with the holders of the Cumulative Preferred Stock having
voting power, shall at no time be less than one, the determination of the
maximum minority of the number of directors shall at all times be made
without regard to fractions, the holders of Class B Common Stock to elect a
minimum majority of one if an odd number directors are to be elected or two
if an even number of directors are to be elected. In the event that there
are no shares of Class B Common Stock outstanding, the holders of Class A
Common Stock, together with the holders of Cumulative Preferred Stock of
all series having voting power (no class voting as a separate class), shall
elect all of the directors to be elected. A director, once elected and duly
qualified, may be removed only by the requisite affirmative vote of the
holders of that class of stock by which such director was elected.
(b) Stock Dividends. Stock dividends on Class A Common Stock shall be
paid only in Class A Common Stock and stock dividends on Class B Common
Stock shall be paid only in Class B Common Stock.
(c) Conversion of Class B Common Stock:
(i) Optional Conversion. Any holder of shares of Class B Common
Stock may convert any or all such shares into shares of Class A Common
Stock on a share-for-share basis, at any time or from time to time, by
surrender to the Corporation of the certificate(s) representing such
shares of Class B Common Stock to be converted by the holder and by
giving written notice to the Corporation of the holder's election to
convert in the form prescribed by the Corporation. The Corporation
shall, as soon as practicable after receipt of such written notice and
the proper surrender to the Corporation of the certificate(s)
representing the shares of Class B Common Stock to be so converted,
issue and deliver to, or in accordance with the instructions of, the
holder certificates for the number of shares of Class A Common Stock
to which the holder shall be entitled and for the number, if any, of
shares of Class B Common Stock represented by the certificate(s)
surrendered which are not being so converted. Such conversion shall
be deemed to have been effective immediately prior to the close of
business on the date on which the Corporation shall have received both
such written notice and the properly surrendered certificate(s) for
shares of Class B Common Stock to be converted (the "Conversion
Date"), and at such time the rights of the holder as to the converted
shares shall cease and the person or persons entitled to receive the
shares of Class A Common Stock issuable upon the conversion shall be
deemed to be, and shall be treated for all purposes as, the record
holder or holders of such Class A Common Stock on the Conversion Date.
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(ii) Automatic Conversion. When the number of outstanding shares
of Class B Common Stock is reduced to less than 500,000 (which number
shall be appropriately adjusted to reflect capital adjustments
resulting from a stock split, stock dividend, reverse stock split,
recapitalization, reorganization, merger, consolidation, combination
or exchange of shares, and the like), all of the then outstanding
shares of Class B Common Stock shall be deemed without further action
on the part of any person (including, without limitation, the
Corporation and its shareholders) to be immediately and automatically
converted into shares of Class A Common Stock on a share-for-share
basis, and stock certificates formerly representing outstanding shares
of Class B Common Stock shall thereupon and thereafter be deemed to
represent a like number of shares of Class A Common Stock possessing
all the rights and privileges incident thereto.
(d) Other. Except as set forth in subsections (a), (b) and (c),
each share of Class A Common Stock and Class B Common Stock shall be
equal in every respect and entitled to the same rights and privileges,
and shall be treated in the same manner with respect to any stock
splits or stock dividends; such shares are collectively referred to
herein as "Common Stock ".
3.3 Directors' Authority to Establish Series of Cumulative Preferred
Stock. The Board of Directors is authorized to divide the Cumulative Preferred
Stock into series and to fix and determine the relative rights and preferences
of each series. Each series shall be so designated by the Board of Directors as
to distinguish the shares thereof from the shares of all other series. All
shares of Cumulative Preferred Stock shall be identical except as to the
following relative rights and preferences, as to which the Board of Directors
may establish variations between different series not inconsistent with the
provisions of these Articles:
(a) The rate of dividend;
(b) The price at and the terms and conditions on which shares may be
redeemed;
(c) The amount payable upon shares in the event of voluntary or
involuntary liquidation;
(d) Sinking fund provisions for the redemption or purchase of shares;
(e) The terms and conditions on which shares may be converted into
Common Stock, if the shares of any series are issued with the privilege of
conversion;
(f) Voting rights, if any, subject to the provisions of Section 3.2
hereof.
3.4 Dividends and Distributions. The holders of Cumulative Preferred
Stock of all series shall be entitled to receive dividends at such rates upon
such conditions and at such times as shall be stated in the resolution or
resolutions of the Board of Directors providing for the issuance thereof. All
dividends on Cumulative Preferred Stock shall be without priority as between
series, shall be
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paid out of net earnings or any surplus properly applicable to the payment of
dividends, and shall be paid or set apart before any dividends or other
distributions shall be paid or set apart for Common Stock; provided, however,
that dividends may be declared and paid on Common Stock in Common Stock prior to
dividends on the Cumulative Preferred Stock being paid or set apart. Any
dividends paid upon the Cumulative Preferred Stock in an amount less than full
cumulative dividends accrued and in arrears upon all Cumulative Preferred Stock
outstanding shall, if more than one series be outstanding, be distributed among
the different series in proportion to the aggregate amounts which would be
distributable to the Cumulative Preferred Stock of each series if full
cumulative dividends were declared and paid thereon. The dividends on the
Cumulative Preferred Stock shall be cumulative, so that if at any time the full
amount of dividends accrued and in arrears on the Cumulative Preferred Stock
shall not be paid, the deficiency shall be payable before any dividends or other
distributions shall be paid or set apart on Common Stock (other than a
distribution payable in shares of Common Stock), and before any sums shall be
paid or set apart for the redemption of less than all of the Cumulative
Preferred Stock then outstanding. Dividends on Cumulative Preferred Stock shall
accrue from date of issue. Whenever all dividends accrued and in arrears on
Cumulative Preferred Stock shall have been declared and shall have been paid or
set apart, the Board of Directors may declare dividends on Common Stock out of
the remaining net profits of the Corporation, or out of surplus applicable to
the payment of such dividends.
3.5 Liquidation Rights. In the event of the voluntary liquidation or
winding up of the Corporation, the holders of Cumulative Preferred Stock shall
be entitled to receive out of the assets of the Corporation in full the fixed
voluntary liquidation amount thereof, plus accrued dividends thereon, all as
provided in the resolution or resolutions providing for the issuance thereof,
before any amount shall be paid to the holders of Common Stock. In the event of
the involuntary liquidation of the Corporation, the holders of the Cumulative
Preferred Stock shall be entitled to receive out of the assets of the
Corporation in full the fixed involuntary liquidation amount thereof, plus
accrued dividends thereon, all as provided in the resolution or resolutions
providing for the issuance thereof, before any amount shall be paid to the
holders of Common Stock. If, upon the voluntary or involuntary liquidation or
winding up of the Corporation, the assets of the Corporation shall be
insufficient to pay the holders of all of the Cumulative Preferred Stock the
entire amounts to which they may be entitled, the assets of the Corporation
shall, if more than one series be outstanding, be distributed among the
different series in proportion to the aggregate amounts which would be
distributable to the Cumulative Preferred Stock of each series if sufficient
assets were available. The holders of Cumulative Preferred Stock shall not
otherwise be entitled to participate in any distribution of assets of the
Corporation, which shall be divided or distributed among the holders of Common
Stock. No consolidation or merger of the Corporation with or into another
corporation or corporations and no sale by the Corporation of all or
substantially all of its assets shall be deemed a liquidation or winding up of
the Corporation.
3.6 Voting Rights of Cumulative Preferred Stock. The holders of
Cumulative Preferred Stock shall have only such voting rights as shall be stated
in the resolution or resolutions of the Board of Directors providing for the
issuance thereof, except to the extent that such limitation may be inconsistent
with the provisions of the Wisconsin Business Corporation Law.
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3.7 Repurchase, etc. of Shares. The Corporation, acting through its Board
of Directors, shall have the right to purchase, take, receive, or otherwise
dispose of its own shares, to the fullest extent provided by law at the time of
any such transaction.
ARTICLE IV.
Pre-emptive Rights
No holder of any stock of the Corporation shall have any pre-emptive or
other subscription rights nor be entitled, as of right, to purchase or subscribe
for any part of the unissued stock of this Corporation or any additional stock
issued by reason of any increase of authorized capital stock of this Corporation
or other securities whether or not convertible into stock of the Corporation.
ARTICLE V.
Voting
The affirmative vote of two-thirds of all shares entitled to vote thereon
(and/or of each class which shall be entitled to vote thereon as a class) shall
be required in order to constitute shareholder approval or adoption of any of
the following:
(a) Merger or consolidation of the Corporation.
(b) Liquidation of the Corporation.
(c) Sale, lease, exchange or other disposition of all or substantially
all assets of the Corporation.
(d) Amendment of the Articles of Incorporation or the By-laws.
(e) Removal of any director of the Corporation.
ARTICLE VI.
Registered Office and Agent
The address of the registered office of the Corporation is c/o Quarles &
Brady LLP, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, and the name
of the registered agent at such office is Anthony W. Asmuth III.
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ARTICLE VII.
Directors
The number of directors constituting the Board of Directors shall be such
number, not less than three (3), as shall be fixed from time to time by the By-
laws of the Corporation, subject to the provisions of this Article VII. The By-
laws may provide for the division of the Board of Directors into two or three
classes of directors and for the terms and manner of election thereof not
inconsistent with the applicable provisions of the Wisconsin Business
Corporation Law. In the event of such classification and provided that shares
of Class B Common Stock are then outstanding, each class of directors so created
shall contain as nearly as possible an equal number of directors elected by the
holders of Class A Common Stock and Cumulative Preferred Stock having voting
power, as a group, and shall also contain as nearly as possible an equal number
of directors elected by the holders of Class B Common Stock. In the event there
should be two classes of directors specified by the By-laws, then from the next
succeeding annual meeting of shareholders and for so long as there are two
classes of directors the total number of directors shall not be less than five
(5). In the event there should be three classes of directors specified by the
By-laws, then from the next succeeding annual meeting of shareholders and for so
long as there are three classes of directors the total number of directors shall
not be less than seven (7). Each director shall serve for the term for which
such director was elected, regardless of any subsequent change in the By-laws
relating to the length of directors' terms.
ARTICLE VIII.
Amendments
These Articles may be amended in the manner authorized by law at the time
of amendment, provided that the provisions of Article V hereof have been
satisfied.
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