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EXHIBIT 4.2
FORM OF
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T H E L I N C O L N E L E C T R I C C O M P A N Y
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AMENDED AND RESTATED
CODE OF REGULATIONS
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AS PROPOSED TO BE AMENDED
ARTICLE I
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SHARES
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1. REGISTRATION AND TRANSFER OF CERTIFICATES. Each shareholder of the
Corporation whose shares have been fully paid for shall be entitled to
a certificate or certificates showing the number of shares registered
in his name on the books of the Corporation. Each certificate shall
be signed by the Chairman of the Board or the President or
Vice-President of the Corporation and the Secretary or Assistant
Secretary or the Treasurer or an Assistant Treasurer. Shares shall be
transferred only on the books of the Corporation by the holder
thereof, in person or by Attorney, upon surrender and cancellation of
certificates for a like number of shares.
2. SUBSTITUTED CERTIFICATES. The Board of Directors may authorize the
issuance of a new certificate in place of any certificate theretofore
issued by the Corporation alleged to have been lost or destroyed; in
its discretion requiring the owner of the lost or destroyed
certificate, or the legal representative, to give the Corporation a
bond in such sum as the Board of Directors may direct as indemnity
against any claim that may be made against the Corporation; or, if in
the judgment of the Board it is proper to do so, a new certificate may
be issued without requiring any bond.
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3. SHAREHOLDERS ENTITLED TO NOTICE AND TO VOTE. The Board of Directors
may fix a time not exceeding forty-five (45) days preceding the date
of any meeting of shareholders, or any dividend payment date, or any
date for the allotment of rights, as a record date for the
determination of the shareholders entitled to notice of such meeting,
or to vote thereat, or to receive such dividends or rights, as the
case may be, or in lieu thereof, the Board of Directors may close the
books of the Corporation against the transfer of shares during the
whole or any part of such period.
ARTICLE II
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MEETINGS OF SHAREHOLDERS
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1. ANNUAL MEETING. The Annual Meeting of shareholders shall be held on
the fourth Tuesday of the month of May each year at the principal
office of the Corporation, if not a legal holiday, and if a legal
holiday, then on the next day not a legal holiday, for the election of
Directors and the consideration of reports to be laid before the
meeting. Upon due notice there may also be considered and acted upon
at the Annual Meeting any matter which can properly be considered and
acted upon at a special meeting, in which case and for which purpose
the Annual Meeting shall also be considered as, and shall be, a
special meeting. When an Annual Meeting is not held or Directors are
not elected thereat, they may be elected at a special meeting called
for that purpose.
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2. SPECIAL MEETINGS. Special meetings of the shareholders may be called
by the President, or a Vice-President, or the Chairman of the Board of
Directors, or by the Executive Committee, or by a majority of the
Board of Directors, acting with or without a meeting, or by persons
who hold twenty-five percent of all the shares outstanding and
entitled to vote thereat, at such place or places as may be designated
in the call therefore, and notice thereof; provided, however, that a
meeting for the election of Directors may be held only within the
State of Ohio.
3. NOTICE OF MEETINGS. Notice of meetings of shareholders shall be given
in writing by the Secretary, or in his absence by the Chairman of the
Board or President or a Vice-President, and such notice shall state
the purpose or purposes for which the meeting is called, and the time
and place where it is to be held, and shall be served or mailed to
each shareholder of record entitled to vote at such meeting or
entitled to notice thereof, at least ten (10) days prior to the
meeting. If mailed, it shall be directed to the shareholder at his
address as it appears upon the records of the Corporation. In the
event of the transfer of shares after notice has been given and prior
to the holding of the meeting, it shall not be necessary to serve
notice upon the transferee. Notice of the time, place and purpose of
any meeting of shareholders may be waived by the written assent of
every shareholder entitled to notice, filed with
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or entered upon the records of the meeting, either before or after
the holding thereof.
5. QUORUM. The holders of a majority of the shares issued and
outstanding, entitled to vote, present either in person or by proxy,
shall constitute a quorum, unless a larger number is required by the
laws of Ohio, in which case the number required by the laws of Ohio,
present either in person or by proxy, shall constitute a quorum, but
any less number may adjourn the meeting from time to time, until a
quorum is obtained, and no further notice of such adjourned meeting
need be given other than by announcement at the meeting at which such
adjournment is taken.
6. PROXIES. Each shareholder entitled to vote shall be entitled to one
vote, either in person or by proxy, for each share of the Corporation
standing in his name at the time of the closing of the books for such
meeting. No proxy shall be valid after the expiration of eleven (11)
months from the date thereof, unless a longer time be specified
therein. Proxies shall be in writing but need not be sealed,
witnessed or acknowledged and shall be filed with the Secretary at or
before the meeting.
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ARTICLE III
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BOARD OF DIRECTORS
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1. NUMBER AND ELECTION. The powers and authority of the Corporation
shall be exercised and its business managed and controlled by a Board
of Directors. The election of Directors shall be by ballot and shall
be held at the Annual Meeting of shareholders or at a special meeting
called for that purpose. The maximum number of the Directors of the
Corporation shall be eighteen. Subject to such maximum, the number of
Directors may be fixed or changed (a) at a meeting of the shareholders
called for the purpose of electing Directors at which a quorum is
present, by the affirmative vote of the holders of a majority of the
shares that are represented at the meeting and entitled to vote on the
proposal, and (b) by the Directors, by the vote of a majority of their
number, who may also fill any Director's office that is created by an
increase in the number of Directors. The Directors shall be divided
into three classes, as nearly equal in number as possible, as
determined by the Board of Directors of the Corporation. A separate
election shall be held for each class of Directors as hereinafter
provided. Directors elected at the first election for the first class
shall hold office for the term of one year from the date of their
election and until the election of their successors, Directors elected
at the first election for the second class shall hold office for the
term of two years from the date of their election and until the
election of their successors, and Directors elected at the
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first election for the third class shall hold office for the term of
three years from the date of their election and until the election of
their successors. At each annual election, the successors to the
Directors of each class whose terms shall expire in that year shall be
elected to hold office for the term of three years from the date of
their election and until the election of their successors. In case of
any increase in the number of Directors of any class, any additional
Directors elected to such class shall hold office for a term which
shall coincide with the term of such class.
2. VACANCY AND REMOVAL. All Directors, for whatever terms elected, shall
hold office subject to applicable statutory provisions as to the
creation of vacancies and removal; provided, however, that all
Directors, all the Directors of a particular class or any individual
Director may be removed from office, without assigning any cause, only
by the affirmative vote of the holders of at least two-thirds of the
voting power of the outstanding shares of stock entitled to vote
generally on the election of Directors.
3. RESIGNATION. Any Director may resign at any time. Such resignation
shall be made in writing and shall take effect at the time specified
therein. If no time is specified, it shall become effective from the
time of its receipt by the Corporation, and the Secretary shall record
such resignation, noting the day, hour and minute of its
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reception. The acceptance of a resignation shall not be necessary to
make it effective.
4. MEETINGS. Directors may meet at such times and at such places within
or without the State of Ohio as they may determine. A majority of the
Board of Directors shall be necessary to constitute a quorum for the
transaction of business, and the act of a majority of Directors
present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
5. BY-LAWS. The Board of Directors may adopt By-Laws for its own
government not inconsistent with the Articles of Incorporation or
Regulations of the Corporation.
ARTICLE IV
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INDEMNIFICATION AND INSURANCE
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1. INDEMNIFICATION. (a) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the
fact that he is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a Director, trustee, officer, employee or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, to the full
extent permitted from time to time under the laws
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of the State of Ohio; provided, however, that the Corporation shall
indemnify any such agent (as opposed to any Director, officer or
employee) of the Corporation to an extent greater than that required
by law only if and to the extent that the Directors may, in their
discretion, so determine.
(b) The indemnification authorized by this Article shall
not be exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification hereunder or under the
Articles or 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.
(c) No amendment, termination or repeal of this Article
IV shall affect or impair in any way the rights of any Director or
officer of the Corporation to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of,
or relating to, any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or repeal.
2. LIABILITY INSURANCE. The Corporation may purchase and maintain
insurance or furnish similar protection, including but not limited to
trust funds, letters of credit or self-insurance, on behalf of or for
any person who is or was a
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Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a Director, trustee,
officer, employee or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under this Article. Insurance may be
purchased from or maintained with a person in which the Corporation
has a financial interest.
ARTICLE V
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NOMINATION OF DIRECTOR CANDIDATES
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1. NOTIFICATION OF NOMINEES. Nominations for the election of Directors
may be made by the Board of Directors or a committee appointed by the
Board of Directors or by any shareholder entitled to vote in the
election of Directors generally. However, any shareholder entitled to
vote in the election of Directors generally may nominate one or more
persons for election as Directors at a meeting only if written notice
of such shareholder's intent to make such nomination or nominations
has been received by the Secretary of the Corporation not less than 80
days in advance of such meeting; provided, however, that in the event
that the date of the meeting was not publicly announced by the
Corporation by mail, press release or otherwise more than 90 days
prior to the meeting, notice by the shareholder to be timely must
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be delivered to the Secretary of the Corporation not later than the
close of business on the tenth day following the day on which such
announcement of the date of the meeting was communicated to
shareholders. Each such notice shall set forth: (a) the name and
address of the shareholder who intends to make the nomination and of
the person or persons to be nominated; (b) a representation that the
shareholder is a holder of record of stock of the Corporation entitled
to vote for the election of Directors on the date of such notice and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) a description of all
arrangements or understandings between the shareholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each
nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the
consent of each nominee to serve as a Director of the Corporation if
so elected.
2. SUBSTITUTION OF NOMINEES. In the event that a person is validly
designated as a nominee in accordance with paragraph 1 above, and
shall thereafter become unable or unwilling to stand for election to
the Board of Directors, the Board of
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Directors or the shareholder who proposed such nominee, as the case
may be, may designate a substitute nominee upon delivery, not fewer
than five days prior to the date of the meeting for the election of
such nominee of a written notice to the Secretary setting forth such
information regarding such substitute nominee as would have been
required to be delivered to the Secretary pursuant to paragraph 1
above had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a
Director of the Corporation, if elected, of each such substitute
nominee.
3. COMPLIANCE WITH PROCEDURES. If the chairman of the meeting for the
election of Directors determines that a nomination of any candidate
for election as a Director at such meeting was not made in accordance
with the applicable provisions of paragraphs 1 and 2 above, such
nomination shall be void.
ARTICLE VI
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COMMITTEES
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1. CREATION AND ELECTION. The Board of Directors may create, from time
to time and from its own number, an Executive Committee or any other
committee or committees of the Board of Directors to act in the
intervals between meetings of the Board of Directors and may delegate
to such committee or committees any of the authority of the Board of
Directors other than that of filling vacancies among the Board of
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Directors or in any committee of the Board of Directors. No committee
shall consist of less than three Directors. The Board of Directors
may appoint one or more Directors as alternate members of any such
committee, who may take the place of any absent member or members at a
meeting of such committee. Except as above provided and except to the
extent that its powers are limited by the Directors, the Executive
Committee during the intervals between meetings of the Directors shall
possess and may exercise, subject to the control and direction of the
Directors, all of the powers of the Directors in the management and
control of the business of the Corporation, regardless of whether such
powers are specifically conferred by these Regulations. All action
taken by the Executive Committee shall be reported to the Directors at
their first meeting thereafter.
2. QUORUM AND ACTION. Unless otherwise ordered by the Board of
Directors, a majority of the members of any committee appointed by the
Board of Directors pursuant to this section shall constitute a quorum
at any meeting thereof, and the act of a majority of the members
present at a meeting at which a quorum is present shall be the act of
such committee. Action may be taken by any such committee without a
meeting by a writing or writings signed by all of its members. Any
such committee shall prescribe its own rules for calling and holding
meetings and its method of procedure, subject to any rules prescribed
by the Board of
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Directors, and shall keep a written record of all action taken by it.
ARTICLE VII
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OFFICERS
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1. OFFICERS. The Corporation may have a Chairman of the Board and shall
have a President (both of whom shall be Directors), a Secretary and a
Chief Financial Officer (who shall serve as Treasurer under Ohio law).
The Corporation may also have one or more Vice Presidents and such
other officers and assistant officers as the Board of Directors may
deem necessary. All of the officers and assistant officers shall be
elected by the Board of Directors.
2. AUTHORITY AND DUTIES OF OFFICERS. The officers of the Corporation
shall have such authority and shall perform such duties as are
customarily incident to their respective offices, or as may be
specified from time to time by the Board of Directors regardless of
whether such authority and duties are customarily incident to such
office.
ARTICLE VIII
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COMPENSATION OF DIRECTORS AND OFFICERS
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The compensation of the Directors and officers of the Corporation shall be such
as the Board of Directors may from time to time designate.
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ARTICLE IX
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AMENDMENTS
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These regulations may be altered, changed, amended or repealed by the written
consent of the holders of record of shares entitling them to exercise not less
than two-thirds of the voting power of the Corporation, or at a meeting called
and held for that purpose, by the affirmative vote of the holders of record of
shares entitling them to exercise not less than a majority of the voting power
of the Corporation; provided, however, that paragraphs 1 and 2 of Article III
and all of Article V shall not be altered, changed, amended or repealed, nor
shall any provision inconsistent with such provisions be adopted, without the
affirmative vote of the holders of record of shares entitling them to exercise
not less than two-thirds of the voting power of the Corporation entitled to
vote generally in the election of Directors.