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THE LINCOLN ELECTRIC COMPANY
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE FIRST: The name of the Corporation shall be THE LINCOLN
ELECTRIC COMPANY.
ARTICLE SECOND: The place in the State of Ohio where its principal
office is located is the City of Cleveland, Cuyahoga County.
ARTICLE THIRD: The Corporation is formed for the purpose of
manufacturing, repairing, buying, selling and dealing in all varieties and
kinds of electrical machinery, tools and appliances, and doing all things
necessary and incident thereto.
ARTICLE FOURTH: Section 1. The maximum number of shares which the
Corporation is authorized to have outstanding is Seventeen Million (17,000,000)
common shares, without par value, consisting of Fifteen Million (15,000,000)
shares of Common Stock, without par value ("Common Stock") and Two Million
(2,000,000) shares of Class A Common Stock, without par value ("Class A Common
Stock").
Section 2. No shareholder of the Corporation shall have any
pre-emptive right as such shareholder to subscribe or purchase shares of the
Corporation.
Section 3. Each shareholder of the Corporation shall be entitled to
one vote for each share of Common Stock and Class A Common Stock standing in
his name on the books of the Corporation. Except as otherwise required by
statute, the holders of Common Stock and the holders of Class A Common Stock
will vote together as one class on all matters.
Section 4. No dividends shall be paid on the outstanding shares of
Common Stock or Class A Common Stock unless an equal dividend per share is paid
on each of the outstanding shares of both the Common Stock and the Class A
Common Stock.
Section 5. All shares of Common Stock and shares of Class A Common
Stock shall be identical in all respects except that:
Section 5.1. No sale, assignment, transfer, pledge, encumbrance or
any other disposition of any shares of Class A Common Stock may be made, except
upon compliance with the provisions of Section 5.2 through 5.4 below (or the
exception set forth in Section 5.2(b) below). Any purported or attempted
disposition of the Class A Common Stock other than as permitted by this Article
Fourth shall be void, and the last shareholder of record who acquired such
shares in a manner not contrary to this Article Fourth shall be recognized as
the holder of such shares for all purposes.
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Section 5.2. The Corporation shall have the sole, exclusive and
unrestricted right, option and privilege to purchase, upon the occurrence of
any of the events set forth below, any or all of the shares of Class A Common
Stock in a manner and at a price per share current at the time of the purchase
of said shares as determined pursuant to the terms and provisions of Sections
5.3 and 5.4 of this Article Fourth. The events are:
(a) The death of a holder of shares of Class A Common Stock; and
(b) The determination of a holder of shares of Class A Common Stock
to sell, assign, transfer, pledge, give, encumber or in any
other way dispose of all or any of said shares, except for any
such disposition in the form of a distribution from The Lincoln
Electric Company Employee Stock Ownership Plan ("Plan")
pursuant to the terms and conditions of the Plan.
Section 5.3. Upon the occurrence of either of the events specified
in Section 5.2 above, the holder of Class A Common Stock, or the personal
representative of said holder's estate, as the case may be, shall notify the
Corporation in writing of the occurrence of any such event. If the Corporation
shall elect to exercise any such right, option or privilege, it shall, not
later than ninety (90) days after it shall have received written notice from
the holder of Class A Common Stock or the personal representative of said
holder's estate, as the case may be, of the occurrence of any such event, send
written notice thereof to said holder or the personal representative of said
holder's estate, as the case may be, of such shares at his or her last address
as shown on the stock transfer records of the Corporation, or, in the event of
the death of said holder, to such other address as may be so specified in the
notice. The Corporation shall pay the purchase price (as determined pursuant
to the terms and provisions of Section 5.4 of this Article Fourth) to the
holder of such shares, or in the event of the death of said holder, to the
personal representative of said holder's estate, immediately upon the delivery
to the Corporation of the certificate or certificates representing the shares
of Class A Common Stock, duly endorsed for transfer and delivery to the
Corporation, its successors, assigns or nominees. Upon delivery of the
Corporation's written notice, all rights in and to the shares of Class A Common
Stock shall be vested solely in the Corporation, its successors, assigns or
nominees. If the Corporation does not exercise its right to purchase any or
all of the shares of Class A Common Stock pursuant to the terms and provisions
of this Article Fourth, such shares may be freely disposed of by the holder
thereof or the personal representative of said holder's estate, as the case may
be, not more than ninety (90) days after the expiration of the Corporation's
repurchase
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period; PROVIDED, HOWEVER, that any such shares of Class A Common Stock so
disposed of shall continue to be subject to the terms and provisions of this
Article Fourth. Any shares of Class A Common Stock not so disposed of shall
continue to be subject in all respects to the restrictions and provisions
contained in this Article Fourth.
Section 5.4. The price, rounded to the nearest dollar, at which any
share of Class A Common Stock shall be bought or sold pursuant to the terms and
provisions of this Article Fourth shall be:
(a) The book value of such share in effect on the date of receipt
by the Corporation of the above-described written notice, plus
(b) The accrued unpaid dividends with respect to such share which
were considered liabilities in determining book value.
The book value used for this purpose shall be established each April 30 for the
12-month period, May 1-April 30, following that date and shall be the book
value as of the immediately preceding December 31 as shown in the Corporation's
Audited Consolidated Financial Statements.
Section 5.5. Any shares of Class A Common Stock purchased by the
Corporation pursuant to this Article Fourth shall be retired and restored to
the status of authorized and unissued shares.
Section 5.6. All stock certificates representing shares of Class A
Common Stock shall contain a reference to the restrictions and provisions
contained in this Article Fourth.
ARTICLE FIFTH: The Board of Directors of the Corporation is hereby
authorized to fix at any time and from time to time the amount of consideration
for which the Corporation may from time to time issue its shares without par
value, whether now or hereafter authorized.
ARTICLE SIXTH: Without derogation from any other power to purchase
shares of the Corporation as permitted by law, the Corporation, acting by its
Board of Directors, may purchase shares of the Corporation to the extent of the
surplus of the aggregate of its capital over the aggregate of its liabilities,
plus stated capital, in the manner permitted by law.
ARTICLE SEVENTH: The holders of shares of the Corporation shall not
be entitled to cumulative voting rights in elections of Directors.
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ARTICLE EIGHTH: Section 1. A higher than majority shareholder vote
for certain Business Combinations (as defined below) shall be required as
follows:
A. In addition to any affirmative vote required by law or these
Articles or the terms of any series of Preferred Stock or any other
securities of the Corporation and except as otherwise expressly
provided in Section 2 of this Article Eighth:
(1) any merger or consolidation of the Corporation or any
Subsidiary with (i) any Interested Shareholder or with (ii) any
other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation
would be, an Affiliate or Associate of an Interested
Shareholder;
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions whether or not related) to an Interested
Shareholder (or an Affiliate or Associate of an Interested
Shareholder) of any assets of the Corporation or a Subsidiary
having an aggregate Fair Market Value of $1,000,000 or more;
(3) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions whether or not related) to or with the Corporation
or a Subsidiary of any assets of an Interested Shareholder (or
an Affiliate or Associate of an Interested Shareholder) having
an aggregate Fair Market Value of $1,000,000 or more;
(4) the issuance or sale by the Corporation or any Subsidiary
(in one transaction or a series of transactions whether or not
related) of any securities of the Corporation or of any
Subsidiary to any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder in exchange for cash,
securities or other consideration (or a combination thereof)
having an aggregate Fair Market Value of $1,000,000 or more
except an issuance of securities upon conversion of convertible
securities of the Corporation or of a Subsidiary which were not
acquired by such Interested Shareholder (or such Affiliate or
Associate) from the Corporation or a Subsidiary;
(5) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation
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proposed by or on behalf of any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder; or
(6) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation with any of
its Subsidiaries or any other transaction (whether or not with
or into or otherwise involving an Interested Shareholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity securities or securities convertible into equity
securities of the Corporation or any Subsidiary which is
directly or indirectly owned by any Interested Shareholder or
any Affiliate or Associate of any Interested Shareholder;
shall require the affirmative vote of (i) the holders of at least
two-thirds of the combined voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally
in an annual election of Directors (the "Voting Stock") and (ii) the
holders of at least two-thirds of the combined voting power of the
then outstanding Voting Stock held by Disinterested Shareholders, in
each case voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law, by
any other provisions of these Articles or by the terms of any series
of Preferred Stock or any other securities of the Corporation.
B. The term "Business Combination" as used in this Article Eighth
shall mean any transaction which is referred to in any one or more of
clauses (1) through (6) of paragraph A of Section 1 of this Article
Eighth.
Section 2. The provisions of Section 1 of this Article Eighth shall
not be applicable to any Business Combination, and such Business Combination
shall require only such affirmative vote (if any) as is required by law, any
other provisions of these Articles or the terms of any class or series of
capital stock of the Corporation entitled to a preference over the Common Stock
as to dividends or upon liquidation, or the terms of any other securities of
the Corporation, if all of the conditions specified in either of the following
paragraphs A or B are met:
A. The Business Combination shall have been approved by a majority
of the Disinterested Directors; or
B. All the following six conditions shall have been met:
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(1) The transaction constituting the Business Combination shall
provide for a consideration to be received by holders of Common
Stock in exchange for their Common Stock, and the aggregate
amount of the cash and the Fair Market Value as of the date of
the consummation of the Business Combination of consideration
other than cash to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to
the highest of the following:
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any shares of Common
Stock beneficially owned by the Interested Shareholder which
were acquired (x) within the two-year period immediately
prior to the first public announcement of the proposed
Business Combination (the "Announcement Date") or (y) in the
transaction in which it became an Interested Shareholder,
whichever is higher;
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (the
"Determination Date"), whichever is higher; and
(c) (if applicable) the price per share equal to the Fair
Market Value per share of Common Stock determined pursuant
to clause (b) immediately preceding, multiplied by the ratio
of (x) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of Common Stock
beneficially owned by the Interested Shareholder which were
acquired within the two-year period immediately prior to the
Announcement Date to (y) the Fair Market Value per share of
Common Stock on the first day in such two-year period on
which the Interested Shareholder beneficially owned any
shares of Common Stock, whether or not such Shareholder was
an Interested Shareholder on that day.
(2) If the transaction constituting the Business Combination
shall provide for a consideration to be received by holders of
any class of outstanding Voting Stock other than Common Stock,
the
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aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of
consideration other than cash to be received per share by
holders of shares of such Voting Stock shall be at least equal
to the highest of the following (it being intended that the
requirements of this clause B(2) shall be required to be met
with respect to every class of outstanding Voting Stock, whether
or not the Interested Shareholder beneficially owns any shares
of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any shares of such
class of Voting Stock beneficially owned by the Interested
Shareholder which were acquired (x) within the two-year
period immediately prior to the Announcement Date or (y) in
the transaction in which it became an Interested
Shareholder, whichever is higher;
(b) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting
Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation;
(c) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date,
whichever is higher; and
(d) (if applicable) the price per share equal to the Fair
Market Value per share of such class of Voting Stock
determined pursuant to clause (c) immediately preceding,
multiplied by the ratio of (x) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid in order to acquire any
shares of such class of Voting Stock beneficially owned by
the Interested Shareholder which were acquired within the
two-year period immediately prior to the Announcement Date
to (y) the Fair Market Value per share of such class of
Voting Stock on the first day in such two-year period on
which the Interested Shareholder beneficially owned any
shares of such class of Voting Stock, whether or not
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such Shareholder was an Interested Shareholder on that day.
(3) The consideration to be received by holders of a particular
class of Voting Stock (including Common Stock) shall be in cash
or in the same form as was previously paid in order to acquire
shares of such class of Voting Stock which are beneficially
owned by the Interested Shareholder and, if the Interested
Shareholder beneficially owns shares of any class of Voting
Stock which were acquired with varying forms of consideration,
the form of consideration to be received by the holders of such
class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting
Stock beneficially owned by it. The prices determined in
accordance with clauses (1) and (2) of paragraph B of this
Section 2 shall be subject to an appropriate adjustment in the
event of any stock dividend, stock split, subdivision,
combination of shares or similar event.
(4) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination:
(a) except as approved by a majority of the Disinterested
Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding
Preferred Stock or other capital stock entitled to a
preference over the Common Stock as to dividends or upon
liquidation;
(b) except as approved by a majority of the Disinterested
Directors, there shall have been (x) no reduction in the
annual amount of dividends paid on the Common Stock (except
as necessary to reflect any subdivision of the Common Stock)
and (y) no failure to increase the annual amount of
dividends as necessary to prevent any such reduction in the
event of any reclassification (including any reverse stock
split), recapitalization, reorganization or similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock;
(c) such Interested Shareholder shall not have become the
beneficial owner of any
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additional shares of Voting Stock except as part of the
transaction in which it became an Interested Shareholder;
and
(d) there shall have always been at least four (4)
Disinterested Directors on the Board of Directors.
(5) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation
of or in connection with such Business Combination or otherwise.
(6) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to shareholders at least
thirty (30) days prior to the consummation of such Business
Combination (whether or not such proxy or information statement
is required to be mailed pursuant to such Act or subsequent
provisions).
Section 3. For purposes of this Article Eighth:
A. A "person" shall mean any individual, a partnership, a
corporation, an association, a trust or other entity.
B. "Interested Shareholder" at any particular time shall mean any
person (other than the Corporation or any Subsidiary or any employee
benefit plan or trust of the Corporation or any Subsidiary) who or
which:
(1) is at such time the beneficial owner, directly or
indirectly, of five percent (5%) or more of the voting power of
the Voting Stock;
(2) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of five
percent (5%) or more of the voting power of the Voting Stock; or
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(3) is at such time an assignee of or has otherwise succeeded
to the beneficial ownership of any shares of Voting Stock which
were at any time within the two-year period immediately prior to
the date in question beneficially owned by any Interested
Shareholder (as defined in (1) and (2) above), if 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.
C. "Disinterested Shareholder" shall mean a shareholder of the
Corporation who is not the Interested Shareholder (or an Affiliate or
an Associate of the Interested Shareholder) who is involved, directly
or indirectly, in the proposed Business Combination in question,
except that as used in Section 6 of this Article Eighth, the term
"Disinterested Shareholder" shall mean a shareholder of the Company
who is not an Interested Shareholder.
D. A person shall be a "beneficial owner" of any shares of Voting
Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
(2) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether or not such right is
exercisable immediately) pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options or otherwise or (ii) the
right to vote pursuant to any agreement, arrangement or
understanding; or
(3) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of
any shares of Voting Stock.
E. For the purpose of determining whether a person is an Interested
Shareholder pursuant to paragraph B of this Section 3, the number of
shares of Voting Stock deemed to be outstanding shall include shares
deemed owned by an Interested Shareholder through application of
paragraph D of this Section 3 but shall not include any other shares
of Voting Stock which may be issuable pursuant to any agreement,
arrangement or
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understanding, or upon the exercise of conversion rights, exchange
rights, warrants or options or otherwise.
F. "Affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is
under common control with, the person specified. "Associate", which
is used to indicate a relationship with any person, means (1) any
corporation or organization (other than the Corporation or a
majority-owned subsidiary of the Corporation) of which such person is
an officer or partner or is, directly or indirectly, the beneficial
owner of ten percent or more of any class of equity securities, (2)
any trust or other estate in which such person has a substantial
beneficial interest or as to which such person serves as trustee or
in a similar fiduciary capacity, and (3) any relative or spouse of
such person, or any relative of such spouse, who has the same home as
such person or who is a director or officer of the Corporation or any
of its parents or subsidiaries.
G. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in paragraph B of this
Section 3, 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.
H. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with, and not a representative or
nominee of, the Interested Shareholder who is involved, directly or
indirectly, in the proposed Business Combination in question, and was
(a) a member of the Board prior to the time that such Interested
Shareholder became an Interested Shareholder or (b) recommended to
succeed a Disinterested Director by a majority of the Disinterested
Directors then on the Board.
I. "Fair Market Value" means: (a) in the case of stock, the highest
closing sale price (or closing bid price for any day on which a
closing sale price is not available) during the 30-day period
immediately preceding the date in question of a share of such stock
on the Composite Tape for New York Stock Exchange Listed Stocks, or,
if such stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or if such stock is not listed on such Exchange, on
the
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principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or if
such stock is not listed on any such exchange, the highest closing
bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotation System or any other
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in good
faith; and (b) in the case of property other than cash or stock, the
fair market value of such property on the date in question as
determined by a majority of the Disinterested Directors in good
faith.
J. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received"
as used in paragraph B of Section 2 of this Article Eighth shall
include the shares of Common Stock and the shares of any other class
of outstanding Voting Stock retained by the holders of such shares.
K. The term "class" of Voting Stock shall be deemed to refer to a
series of Voting Stock where more than one series of Voting Stock is
outstanding within a class of Voting Stock.
Section 4. A majority of the Disinterested Directors of the
Corporation shall have the power and duty to determine for the purpose of this
Article Eighth, on the basis of information known to them after reasonable
inquiry, (1) whether a person is an Interested Shareholder, (2) the number of
shares of Voting Stock beneficially owned by any person, (3) whether a person
is an Affiliate or Associate or another, (4) whether the requirements of
Section 2 of this Article Eighth have been met with respect to any Business
Combination, and (5) whether the assets which are subject to any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by this Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $1,000,000 or more. Any
such determination made in good faith shall be binding and conclusive on all
parties.
Section 5. Nothing contained in this Article Eighth shall be
construed to relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
Section 6. In addition to any requirements of law and any other
provisions of these Articles or the terms of any class or series of capital
stock of the Corporation entitled to a preference over the Common Stock as to
dividends or upon
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liquidation, or the terms of any other securities of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law,
these Articles or any such terms), the affirmative vote of
A. the holders of two-thirds or more of the combined voting power of
the Voting Stock, voting together as a single class, and
B. two-thirds of the combined voting power of the Voting Stock held
by the Disinterested Shareholders, voting together as a single class,
shall be required to amend, alter or repeal or adopt any provision inconsistent
with, this Article Eighth.
ARTICLE NINTH: The foregoing Amended and Restated Articles of
Incorporation hereby supersede existing Amended Articles of Incorporation as
heretofore amended.