Exhibit 3.1(d)
AMENDED AND CONSOLIDATED
ARTICLES OF INCORPORATION
OF
THE GRADALL COMPANY
The GRADALL COMPANY, an Ohio corporation (the "Corporation"), does
hereby adopt the following Amended and Consolidated Articles of Incorporation
(the "Articles of Incorporation") pursuant to the provisions of Chapter 1701 of
the Revised Code of Ohio, as amended and implemented, and as hereinafter
sometimes referred to as the "General Corporation Law".
FIRST: The name of the Corporation (hereinafter called the
"Corporation") is:
THE GRADALL COMPANY
SECOND: The place in the State of Ohio where the principal office of
the Corporation is to be located is: City of New Philadelphia, County of
Tuscarawas, Zip Code: 44663.
THIRD: The purposes for which the Corporation is formed shall be
any lawful act or activity for which corporations may be formed under Chapter
1701 of the Revised Code of Ohio.
FOURTH: The authorized number of shares of the Corporation is:
PAR VALUE NUMBER OF
CLASS PER SHARE AUTHORIZED SHARES
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Class A Common No par value 5,000
Class B Common No par value 100
Class C Common No par value 128
The Class A Common, Class B Common and Class C Common Stock shall be
collectively defined herein as the "Common Shares".
All or any part of said Common Shares without par value may be issued
by the Corporation from time-to-time and for such consideration as may be
determined upon and fixed by the Board of Directors, as provided by law. Any and
all such Common Shares issued, for which the full consideration has been paid or
delivered, shall be deemed fully paid shares and the holder of such shares shall
not be liable for any further call or assessment or any other payment thereon.
The preferences, qualifications, limitations, restrictions and the
special or relative rights in respect of the shares of each class are:
1. Rights Applicable to all Classes.
I. Cumulative Voting. No holder of shares of any class of Common
Shares shall have cumulative voting power for any purpose.
II. Class Voting. Holders of any class of Common Shares shall not
be entitled to vote as a class for any purpose not required by the General
Corporation Law, and in any such case, only a majority vote of the shares of
such class shall be required for any purpose.
III. Shares Issued Prior to the Effective Date of these Amended
Articles of Incorporation. Each of the shares of Common Stock issued prior to
January 19, 1988, is hereby classified as a share of Class A Common Stock.
IV. Identical Rights. Except as otherwise provided in these
Articles of Incorporation, all Common Shares shall be identical and shall have
the same preferences, qualifications, limitations, restrictions and special or
related rights in all respects.
V. Subdivision and Combination of Shares. If the Corporation in
any manner subdivides or combines the outstanding shares of any class of Common
Shares, then the outstanding shares of the other classes of Common Shares will
be proportionately subdivided or combined.
2. Class A Common Stock.
I. Dividends. Holders of shares of Class A Common Stock shall be
entitled to dividends when and as permitted by the General Corporation Law and
when and as declared by the Board of Directors.
II. Voting Rights. Each share of Class A Common Stock shall be
entitled to one (1) vote for all purposes.
3. Class B Common Stock.
I. Dividends. Holders of shares of Class B Common Stock shall be
entitled to dividends only as follows:
1. when and as permitted by the General Corporation Law
and when and as declared by the Board of Directors; and,
2. only after such time as all of the principal of, and
interest and penalty, if any, on the amount of the Total Facility by
and between ICM Investment Company, an Ohio corporation ("ICM
Investment"), its successors and assigns, as borrower, and Citicorp
North American, Inc., (f/k/a Citicorp Industrial Credit, Inc.), a
Delaware corporation ("CNA"), its successors and assigns, as lender,
pursuant to a Loan Agreement by and between ICM Investment and CNA
dated November 5, 1985, as
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amended or restated from time-to-time, is fully paid; and further, if
such Total Facility is refinanced from time-to-time, in whole or in
part, with CNA or with a lender or lenders other than CNA, then the
restriction on payment of dividends contained in this section shall
continue, and remain in full force and effect until all of the
principal of, and interest and penalty, if any, on the amount of such
Total Facility, as refinanced, is fully paid.
II. Voting Rights. Each share of Class B Common Stock shall be
entitled to one (1) vote for all purposes.
4. Class C Common Stock.
I. Dividends. Holders of Class C Common Stock shares shall be
entitled to dividends when and as permitted by the General Corporation Law and
when and as declared by the Board of Directors, provided, however, that:
(i) if dividends are declared which are payable in shares
of Class A Common Stock, Class B Common Stock or
Class C Common Stock, dividends will be declared
which are payable at the same rate on each class of
Common Shares and the dividends payable in shares of
Class A Common Stock will be payable to holders of
shares of Class A Common Stock, the dividends payable
in shares of Class B Common Stock will, to the extent
permitted under these Articles of Incorporation, be
payable to holders of Class B Common Stock, and the
dividends payable in shares of Class C Common Stock
will be payable to holders of shares of Class C
Common Stock; and,
(ii) if dividends, payable in cash or in kind (except as
aforesaid) are declared on the shares of Class A
Common Stock, dividends shall be declared on the
shares of Class C Common Stock which are payable at
the same rate per share as the dividends declared on
each share of Class A Common Stock (which rate shall
be appropriately adjusted to reflect any stock
dividend payable upon, or subdivision or combination
of, one or more classes of the Common Shares).
II. Voting Rights. Except as otherwise required under the General
Corporation Law, each share of Class C Common Stock shall have no voting rights.
III. Conversion. Each record holder of shares of Class C Common
Stock will be entitled to convert any or all of such holder's shares of Class C
Common Stock into shares of Class A Common Stock at the rate of one share for
each share of Class C Common Stock or fractions thereof so converted (which rate
shall be appropriately adjusted to reflect any stock dividend payable upon, or
subdivision or combination of, one or more classes of Common Shares); provided,
however, that no holder of Class C Common Stock shall be entitled to convert any
shares of Class C Common Stock into shares of Class A Common Stock except to the
extent permitted by the Class C Conversion Conditions (as hereinafter defined).
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As used herein, the Class C Conversion Conditions shall mean any one or
more of the following:
(i) In connection with an underwritten public offering of
shares of the Corporation's Class A Common Stock in
which a holder of shares of Class C Common Stock has
a contractual right to sell shares of Class A Common
Stock in such public offering, such holder may
convert that number of shares of Class C Common Stock
as converts into the number of shares of Class A
Common Stock that such holder is entitled to sell in
such offering;
(ii) At any time after a public offering of shares of the
Corporation's Class A Common Stock, a holder of
shares of Class C Common Stock may, in connection
with the sale by such holder pursuant to an effective
registration statement or under Rule 144 promulgated
under the Securities Act of 1933, as amended, or
similar successor rule or regulation, convert that
number of shares of Class C Common Stock as converts
into the number of shares of Class A Common Stock to
be sold thereunder;
(iii) At any time after any other transaction or series of
related transactions pursuant to which "beneficial
ownership" (as such term is used in Section 13(d) of
the Securities Exchange Act of 1934, as amended, and
the regulations thereunder) of shares of the
Corporation's Common Shares constituting at least a
majority of the ordinary voting power as represented
by all of the Corporation's shares then outstanding
is to be, or has been, transferred to a person or
entity (the "Majority Entity") (excluding any holder
of shares of Class C Common Stock), then shares of
Class C Common Stock shall convert into shares of
Class A Common Stock upon transfer to the Majority
Entity of any or all of such holder's shares of Class
C Common Stock; and,
(iv) A holder of shares of Class C Common Stock may
convert shares of Class C Common Stock at any time to
the extent that such conversion is not prohibited by
the Bank Holding Company Act of 1956, as amended (the
"BHC Act"), and the applicable rules and regulations
promulgated thereunder by the Board of Governors of
the Federal Reserve System (the "Board"), as
certified in writing to the Corporation by such
holder at the time of such conversion, which
certification shall be accompanied by either: (a) a
confirmatory letter by or on behalf of the Board; or,
(b) if after giving effect to such conversion the
total number of shares of Common Shares owned by such
holders and its affiliates (as such term is used in
the BHC Act) would represent 4.9% or less of the
total number of shares of all classes of the
Corporation's Common Shares having the power to vote
generally in the election of the Corporation's board
of directors, a favorable written opinion of
independent counsel reasonably satisfactory to the
Corporation.
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A holder's right to convert shares of Class C Common Stock under any of
the circumstances described in the foregoing clauses (i) through (iv),
inclusive, shall be established by written notice given by the Corporation to
such holder, or by such holder to the Corporation, to the effect that such
circumstances exist or are about to exist; provided, however, that so long as
such holder is subject to the provisions of the BHC Act and the applicable rules
and regulations promulgated thereunder by the Board, the conversion proposed to
be effected under clauses (i) through (ii), inclusive, shall be effective only
if the holder is selling the shares of Class A Common Stock receivable upon
conversion in either a widely dispersed public offering or in sales aggregating
separately no greater than two percent (2%) of the outstanding shares of Class A
Common Stock each (after giving effect to such sales).
Each conversion of shares of Class C Common Stock into shares of Class
A Common Stock will be effected by the surrender of the certificate or
certificates representing the shares to be converted at the principal office of
the Corporation at any time during normal business hours, together with a
written notice by the holder of such shares stating the number of shares that
any such holder desires to convert into Class A common Stock. Such conversion
will be deemed to have been effected as of the close of business on the date on
which such certificate or certificates have been surrendered and such notice has
been received by the Corporation, and at such time the rights of any such holder
with respect to the converted shares of Class C Common Stock will cease and the
person or persons in whose name or names the certificate or certificates for
shares of Class A Common Stock are to be issued upon such conversion will be
deemed to have become the holder or holders of record of the shares of Class A
Common Stock represented thereby.
Promptly after such surrender and the receipt by the Corporation of the
written notice from the holder hereinbefore referred to, the Corporation will
issue and deliver in accordance with the surrendering holder's instructions the
certificate or certificates for the shares of Class A Common Stock issuable upon
such conversion and a certificate representing shares of any Class C Common
Stock which were represented by the certificate of certificates delivered to the
Corporation in connection with such conversion but which were not converted. The
issuance of certificates for shares of Class A Common Stock upon conversion will
be made without charge to the holder or holders of such shares for any issuance
tax (except stock transfer taxes) in respect thereof or other costs incurred by
the Corporation in connection with such conversion.
IV. Transfers. The Corporation will not close its books against
the transfer of any shares of Class A Common Stock or Class C Common Stock, or
of any shares of Class A Common Stock issued or issuable upon conversion of
shares of Class C Common Stock, in any manner that would interfere with the
timely conversion of such shares of Class C Common Stock.
V. Reservation of Shares for Conversion. So long as any shares of
Class C Common Stock are outstanding, the Corporation will at all times reserve
and keep available out of its authorized but unissued Common Shares (or any
Class A Common Stock which are held as treasury shares), the number of shares
sufficient for issuance upon conversion of the shares of Class C Common Stock.
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VI. Merger, etc. In connection with any merger, consolidation, or
recapitalization in which holders of shares of Class A Common Stock generally
receive, or are given the opportunity to receive, consideration for their
shares, all holders of shares of Class C Common Stock shall be given the
opportunity to receive the same consideration for their shares as received by
the holders of shares of Class A Common Stock.
FIFTH: The period of existence of the Corporation is perpetual.
SIXTH: 1. Notwithstanding any provision in the General
Corporation Law requiring for any purpose the vote, consent, waiver, or release
of the holders of a designated greater proportion (but less than all) of the
shares of any particular class or of each class, if the shares are classified,
the vote, consent, waiver, or release of the holders of at least a majority of
the voting power or of at least a majority of the shares entitled to vote, as
the case may be, of such particular class or of each class, if the shares are
classified, shall be required in lieu of any such designated greater proportion
otherwise required by any provisions of said General Corporation Law.
2. Whenever the General Corporation Law shall fail to
prescribe a designated proportion of voting power required for any purpose, the
vote, consent, waiver, or release of at least a majority of the voting power
represented at a meeting of shareholders at which a quorum is present shall be
sufficient for any such purpose; and at any such meeting the shareholders
entitled to exercise at least a majority of the voting power relating to any
such purpose shall constitute a quorum.
3. Whenever the Corporation shall engage in whole or in
part in the exploitation of mines, timber, oil wells, gas wells, quarries, or
other natural resources, the Corporation may compute its surplus for the purpose
of paying dividends without making any deduction or allowance for the depletion
of said assets incidental to the exploitation and sale thereof.
4. The Corporation shall have the power, without the
approval, which might otherwise be required, of any of its shareholders, to
repurchase any of its shares if and when any shareholder desires to, or on the
happening of any event is required to, sell such shares, and shall have the
power, without the approval of any of its shareholders, to purchase any of its
issued shares to the fullest extent permitted by Section 1701.35 of the General
Corporation Law.
SEVENTH: The Corporation shall, to the fullest extent permitted by
Section 1701.13 of the General Corporation Law, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said Section from and against any and all of the expenses,
liabilities, or other matters referred to or covered by said Section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under the
Regulations, any agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, trustee, officer, employee, or agent, and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
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EIGHTH: From time to time, any of the provisions of these Amended
Articles of Incorporation may be amended, altered, or repealed, and other
provisions authorized by the General Corporation Law and the laws of the State
of Ohio at the time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred upon the
shareholders of the Corporation by the Articles of Incorporation are granted
subject to the provisions of this Article EIGHTH.
NINTH: These Amended Articles of Incorporation supercede and take
the place of the heretofore existing Articles of Incorporation of the
Corporation and all amendments thereto.
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