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Exhibit 3(i)
CERTIFICATE OF ADOPTION
OF
SECOND RESTATED ARTICLES OF INCORPORATION
OF
THE LINCOLN ELECTRIC COMPANY
H. Jay Elliott, Senior Vice President, and Frederick G.
Stueber, Secretary, of The Lincoln Electric Company, an Ohio corporation with
its principal office in the City of Cleveland, Cuyahoga County, Ohio (the
"Corporation"), do hereby certify that:
1. A meeting of the Directors of the Corporation was duly
called and held on May 28, 1997, at which meeting a quorum of the Directors of
the Corporation was present, and, by the unanimous vote of such Directors of the
Corporation, the following resolutions were adopted:
RESOLVED, that the officers of the Company (and each of them),
acting in accordance with O.R.C. sec.1701.73, are authorized to execute
for and on behalf of the Company, a Certificate of Amendment to the
Company's Restated Articles of Incorporation setting forth the
amendments to such Articles as approved by the Company's shareholders
at the Company's 1997 Annual Meeting (the "1997 Amendments") and to
cause the same to be filed with the Secretary of State of Ohio and to
do all acts and things whatsoever which may be necessary or appropriate
to make the 1997 Amendments effective.
FURTHER RESOLVED, that upon the effectiveness of the 1997
Amendments, the Restated Articles of Incorporation of the Company, as
amended, be restated in their entirety to consolidate all prior
amendments to such Articles by replacing the current Restated Articles
of Incorporation, as amended, with Second Restated Articles of
Incorporation of the Company, a copy of which has been presented to the
Board of Directors, and the officers of the Company (and each of them)
are hereby authorized to execute for and on behalf of the Company, a
Certificate setting forth such Second Restated Articles of
Incorporation of the Company and to cause the same to be filed with the
Secretary of State of Ohio and to do all acts and things whatsoever
necessary or appropriate to make such Second Restated Articles of
Incorporation effective.
2. The Second Restated Articles of Incorporation of the
Corporation were adopted by the Directors for the purpose of consolidating the
existing Restated Articles of Incorporation of
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the Corporation and all previously adopted amendments to the Restated Articles
of Incorporation of the Corporation pursuant to Section 1701.72(B) of the Ohio
Revised Code.
3. The Second Restated Articles of Incorporation of the
Corporation are attached hereto as EXHIBIT A and supersede all previous Restated
Articles of Incorporation, and amendments thereof, of the Corporation.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Adoption of Second Restated Articles of Incorporation this __ day
of May, 1997.
-----------------------------------
H. Jay Elliott, Senior Vice
President
-----------------------------------
Frederick G. Stueber, Secretary
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EXHIBIT A
---------
THE LINCOLN ELECTRIC COMPANY
SECOND 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 one hundred twenty million
(120,000,000), consisting of sixty million (60,000,000) Common Shares, without
par value ("Common Shares"), and sixty million (60,000,000) Class A Common
Shares, without par value ("Class A Common Shares"). The shares of each class
shall have the express terms set forth in this Article Fourth.
Upon the Certificate of Adoption of Amendment to Restated Articles of
Incorporation setting forth these amendments becoming effective pursuant to
Section 1701.73 of the Ohio Revised Code (the "Reclassification Effective
Time"), and without any further action on the part of the Corporation or its
shareholders, (i) each whole Class B Common Share, without par value ("Class B
Common Shares"), then issued shall automatically be changed and converted into
0.5809 fully paid and nonassessable Common Share and (ii) certificates
representing Class B Common Shares outstanding prior to the Reclassification
Effective Time shall be deemed to represent the same number of Common Shares
multiplied by 0.5809. No fractional shares shall be issued; instead any
fractional share shall become a right to receive cash in an amount equal to such
fraction multiplied by $37.875.
The powers, preferences and rights of the Common Shares and Class A
Common Shares (collectively, the "Common Equity") and the qualifications,
limitations and restrictions thereof, shall in all respects be identical, except
as otherwise required by law or as expressly provided in these Restated Articles
of Incorporation. The "Effective Time" means June 7, 1995.
Section 2. Voting.
Section 2.1. Each shareholder of the Corporation shall be
entitled to one vote for each Common Share standing in such shareholder's name
on the books of the Corporation.
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Section 2.2. The holders of Class A Common Shares shall not be
entitled to vote on any matter submitted to shareholders for their vote,
consent, waiver, release or other action except as required by statute.
Section 3. Dividends. Dividends may be declared and paid to
the holders of Common Shares and Class A Common Shares in cash, property, or
other securities of the Corporation (including shares of any class whether or
not shares of such class are already outstanding) out of funds legally available
therefor. No dividend shall be paid on the outstanding Common Shares or Class A
Common Shares unless an equal dividend per share is paid on each of the
outstanding Common Shares and Class A Common Shares subject to the following:
(a) no cash dividend shall be declared or paid on one
class of Common Equity unless a cash dividend of the
same amount per share is simultaneously declared and
paid on the other class of Common Equity;
(b) dividends payable on the Common Equity in capital
stock shall be made to all holders of Common
Equity provided that: (i) such a dividend on Class
A Common Shares shall be paid or made only in
Class A Common Shares and (ii) a dividend on Class
A Common Shares paid or made in Class A Common
Shares and a dividend on Common Shares paid or
made in either Common Shares or Class A Common
Shares shall be deemed an equal dividend per share
within the meaning of this Section 3 if paid in
the same proportion regardless of the fair market
value of such shares received in payment of such
dividend.
Section 4. Merger, Consolidation, Combination or Dissolution
of the Corporation. In the event of merger, consolidation or combination of the
Corporation with another entity (whether or not the Corporation is the surviving
entity) or in the event of dissolution of the Corporation, holders of Class A
Common Shares shall be entitled to receive in respect of each Class A Common
Share the same indebtedness, other securities, cash, rights, or any other
property, or any combination of shares, evidences of indebtedness, securities,
cash, rights or any other property, as holders of Common Shares shall be
entitled to receive in respect to each share.
Section 5. Splits or Combinations of Shares. If the
Corporation shall in any manner split, subdivide or combine the outstanding
Common Shares or Class A Common Shares, the outstanding shares of the other such
class shall be proportionately split, subdivided or combined in the same manner
and on the same basis as the outstanding shares of the other class that have
been split, subdivided or combined.
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Section 6. Change in Number of Authorized Class A Common
Shares. The number of authorized Class A Common Shares may be increased or
decreased (but not below the number then outstanding) by the affirmative vote of
the holders of a majority of the aggregate number of outstanding Common Shares
entitled to vote in the election of directors.
Section 7. No Preemptive Rights. No shareholder of the
Corporation shall have any preemptive right as such shareholder to subscribe for
or purchase shares of the Corporation.
Section 8. Class A Common Shares Protection Provisions.
Section 8.1. If, after the Effective Time, a Person or group,
as defined in Section 8.11, acquires beneficial ownership of shares representing
15% or more of the number of then outstanding Common Shares and such Person or
group (a "Significant Shareholder") does not then beneficially own an equal or
greater percentage of all then outstanding Class A Common Shares, all of which
Class A Common Shares must have been acquired by such Significant Shareholder
after the first issuance by the Corporation of Class A Common Shares (the
"Distribution Date"), such Significant Shareholder must, within a ninety (90)
day period beginning the day after becoming a Significant Shareholder, make a
public cash tender offer in compliance with all applicable laws and regulations
to acquire additional Class A Common Shares as provided in this Section 8 of
Article Fourth (a "Class A Protection Transaction").
Section 8.2. In each Class A Protection Transaction, the
Significant Shareholder must make a public tender offer to acquire that number
of additional Class A Common Shares determined by (i) multiplying the percentage
of the number of outstanding Common Shares beneficially owned and acquired after
the Effective Time by such Significant Shareholder by the total number of Class
A Common Shares outstanding on the date such Person or group became a
Significant Shareholder, and (ii) subtracting therefrom the excess (if any) of
the number of Class A Common Shares beneficially owned by such Significant
Shareholder on the date such Person or group became a Significant Shareholder
(including shares acquired at or prior to the time such Person or group became a
Significant Shareholder) over the number of Class A Common Shares beneficially
owned on the Distribution Date (as adjusted for stock splits, stock dividends
and similar recapitalization). The Significant Shareholder must acquire all
shares validly tendered; or if the number of Class A Common Shares tendered to
the Significant Shareholder exceeds the number of shares required to be acquired
pursuant to this Section 8.2, the number of Class A Common 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 by all tendering holders.
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Section 8.3. The offer price for any Class A Common Shares
required to be purchased by the Significant Shareholder pursuant to this Section
8 shall be the greatest of (i) the highest price per share paid by the
Significant Shareholder for any Common Shares or Class A Common Shares during
the six-month period ending on the date such Person or group became a
Significant Shareholder, (ii) the highest reported sale price of a Common Share
or Class A Common Share on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") National Market System (or such other
securities exchange or quotation system as is then the principal trading market
for such shares) during the 30 day period preceding such Person or group
becoming a Significant Shareholder, and (iii) the highest reported sale price of
a Common Share or Class A Common Share on the NASDAQ National Market System (or
such other securities exchange or quotation system as is then the principal
trading market for such shares) on the business day preceding the date the
Significant Shareholder makes the tender offer required by this Section 8. For
purposes of Section 8.4, 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 subsequent Class A
Protection Transaction for which such calculation is required. In the event that
the Significant Shareholder has acquired Common Shares or Class A Common Shares
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 Common Share or Class A Common Share shall be as determined in
good faith by the Board of Directors.
Section 8.4. A Class A 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 additional Common Shares equal to or greater than the next higher integral
multiple of 5% in excess of 15% (e.g., 20%, 25%, 30%, etc.) of the number of
outstanding Common Shares if such Significant Shareholder does not then own an
equal or greater percentage of the Class A Common Shares (all of which Class A
Common Shares must have been acquired by such Significant Shareholder after the
Distribution Date). Such Significant Shareholder shall be required to make a
public cash tender offer to acquire that number of Class A Common Shares
prescribed by the formula set forth in Section 8.2, and must acquire all shares
validly tendered or a pro rata portion thereof, as specified in Section 8.2, at
the price determined pursuant to Section 8.3, even if a previous Class A
Protection Transaction resulted in fewer Class A Common Shares being tendered
than required in the previous offer.
Section 8.5. If any Significant Shareholder fails to make an
offer required by this Section 8, or to purchase shares validly tendered and not
withdrawn (after proration, if any), such Significant Shareholder shall not be
entitled to vote any Common Shares beneficially owned by such Significant
Shareholder
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unless and until such requirements are complied with or unless and until all
Common Shares causing such offer requirement to be effective are no longer
beneficially owned by such Significant Shareholder. The requirement to engage in
a Class A Protection Transaction is satisfied by the making of the requisite
offer and purchasing validly tendered shares pursuant to this Section 8, even if
the number of shares tendered is less than the number of shares included in the
required offer.
Section 8.6. The Class A Protection Transaction requirement
shall not apply to any increase in percentage beneficial ownership of Common
Shares resulting solely from a change in the aggregate number of Common Shares
outstanding, provided that any acquisition after such change which results in
any Person or group beneficially owning fifteen percent (15%) or more of the
number of outstanding Common Shares (or an additional 5% or more of the number
of Common Shares after the last acquisition which triggered the requirement for
a Class A Protection Transaction) shall be subject to any Class A Protection
Transaction requirement that would be imposed pursuant to this Section 8.
Section 8.7. In connection with Sections 8.1 through 8.4 of
this Section 8, the following Common Shares shall be excluded for the purpose of
determining the shares beneficially owned by such Person or group but not for
the purpose of determining shares outstanding:
(a) shares beneficially owned by such Person or group
at the Effective Time;
(b) 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 this Section
8 or by foreclosure of a bona fide loan;
(c) shares acquired upon issuance or sale by the
Corporation;
(d) 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);
(e) shares acquired in exchange for Class A Common
Shares by a holder of Class A Common Shares (or by
a parent, lineal descendant or donee of such
holder of Class A Common Shares who received such
Class A Common Shares from such holder) if the
Class A Common Shares so exchanged were acquired
by such holder directly from the Corporation as a
dividend on Common Shares; and
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(f) 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.
Section 8.8. In connection with Sections 8.1 through 8.4 of
this Section 8, for purposes of calculating the number of Class A Common Shares
beneficially owned by any Persons or group:
(a) Class A Common Shares 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 8; and
(b) only Class A Common Shares 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 Class A Common Shares 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).
Section 8.9. To the extent that the voting power of any Common
Share cannot be exercised pursuant to this Section 8, that Common Share shall
not be included in the determination of the voting power of the Corporation for
any purpose under these Restated Articles of Incorporation or the Ohio Revised
Code.
Section 8.10. All calculations with respect to percentage
beneficial ownership of issued and outstanding shares of either Common Shares or
Class A Common Shares will be based upon the numbers of issued and outstanding
shares reflected in either the records of or a certificate from the
Corporation's stock transfer agent or 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, (iv) its most recent report on Form 10-C, and (v) its most
recent definitive proxy statement filed with the Securities and Exchange
Commission.
Section 8.11. For purposes of this Section 8, the term
"Person" means any individual, partnership, corporation, association, trust, or
other entity (other than the Corporation). Subject to Sections 8.7 and 8.8,
"beneficial ownership" shall be determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
successor regulation and the formation or existence of a "group" shall be
determined pursuant to Rule 13d-5(b) under the 1934 Act or any successor
regulation, subject to the following
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qualifications:
(a) relationships by blood or marriage between or among
any Persons will not constitute any of such Persons
as a member of a group with such other Person, absent
affirmative attributes of concerted action; and
(b) 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.
Section 9. Conversion of Class A Common Shares. Each Class A
Common Share (whether or not then issued) shall convert automatically into one
Common Share upon the earliest to occur of:
(a) any time the aggregate number of the outstanding
Common Shares as reflected on the stock transfer
records of the Corporation is less than 20% of the
aggregate number of outstanding Common Shares and
Class A Common Shares. For purposes of the
immediately preceding sentence, any Common Shares
or Class A Common Shares repurchased by the
Corporation and held as treasury shares or
cancelled by the Corporation shall not be deemed
"outstanding" from and after the date of
repurchase;
(b) the date ("Conversion Date") which shall be ten years
from the Distribution Date of the Class A Common
Shares as defined in Section 8.1; provided, however,
that the Board of Directors by resolution adopted by
two-thirds of the entire number of Directors then in
office no earlier than thirty months and no later
than twenty-four months prior to the initial or any
subsequently established Conversion Date may extend
the Conversion Date for an additional five years. Any
such new Conversion Date and all subsequently
extended Conversion Dates may be extended in like
manner and for a like period; and
(c) upon resolution by the Board of Directors if, as a
result of the existence of the Class A Common
Shares, either the Common Shares or Class A Common
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Shares is, or both are, excluded from quotation on
the NASDAQ National Market System, and all other
national quotation systems then in existence and
are excluded from trading on all the principal
national securities exchanges then in existence.
Upon such conversion, the total number of Common Shares the Corporation shall
have authority to issue shall be 120,000,000 shares, and the total number of
Class A Common Shares shall be zero (0) shares and all references to Class A
Common Shares shall be of no further force or effect. In making the
determination referred to in (a) or (c) of this Section 9, the Board of
Directors may conclusively rely on any information or documentation available to
it, including but not limited to filings made with the United States Securities
and Exchange Commission, any stock exchange, the National Association of
Securities Dealers, Inc. or any national quotation system or any other
government or regulatory agency, or the records of or certification from the
Corporation's stock transfer agent. At such time as set forth in (a), (b) or (c)
of this Section 9, the Class A Common Shares shall be deemed to be automatically
converted into Common Shares and stock certificates formerly representing Class
A Common Shares shall thereupon and thereafter be deemed to represent a like
number of Common Shares. The determination of the Board of Directors that either
(a) or (c) of this Section 9 has occurred shall be conclusive and binding and
the conversion of each Class A Common Share into one Common Share shall remain
effective regardless of whether either (a) or (c) has occurred in fact.
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 and whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class.
ARTICLE SIXTH: The Corporation may from time to time pursuant
to authorization by the Board of Directors and without action by the
shareholders, purchase or otherwise acquire shares of the Corporation of any
class or classes in such manner, upon such terms and in such amounts as the
Board of Directors shall determine without regard to whether less consideration
could be paid upon the purchase of the same number of shares of another class,
subject, however, to such limitation or restriction, if any, as is contained in
the express terms of any class of shares of the Corporation outstanding at the
time of the purchase or acquisition in question.
ARTICLE SEVENTH: The holders of shares of the Corporation
shall not be entitled to cumulative voting rights in elections of Directors.
ARTICLE EIGHTH: Section 1. A higher than majority
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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
an Interested Shareholder or any Affiliate or
Associate of an 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
proposed by or on behalf of an Interested Shareholder
or an Affiliate or Associate of an Interested
Shareholder; or
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(6) any reclassification of securities (including any
reverse stock split) or recapitalization of the
Corporation or a Subsidiary 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 a
Subsidiary which is directly or indirectly owned by
any Interested Shareholder or an Affiliate or
Associate of an 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
or entitled by law or by the terms of the capital stock to
vote on the transaction in question (the "Voting Shares") and
(ii) the holders of at least two-thirds of the combined voting
power of the then outstanding Voting Shares 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, the terms of any of the classes or
series of Common Equity of the Corporation or of any of the classes or series of
capital stock of the Corporation entitled to a preference over the Common Equity
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 Equity in exchange for
their Common Equity, 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 Equity 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 Equity 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 Equity 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 Equity 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 Equity 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 Equity on
the first day in such two-year period on
which the Interested Shareholder
beneficially owned any shares of Common
Equity, 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 Shares other than Common Equity, the aggregate
amount of the cash and the Fair Market
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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 such Voting
Shares 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 Shares,
whether or not the Interested Shareholder
beneficially owns any shares of a particular class of
Voting Shares):
(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 Shares 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 Shares 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 Shares 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 Shares 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
Shares 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
Shares on the first day in such two-year
period on which the Interested Shareholder
beneficially owned any shares of such class
of Voting Shares, whether or not such
Shareholder was an Interested Shareholder on
that day.
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(3) The consideration to be received by holders of a
particular class of Voting Shares or Common Equity
shall be in cash or in the same form as was
previously paid in order to acquire shares of such
class of shares which are beneficially owned by the
Interested Shareholder and, if the Interested
Shareholder beneficially owns shares of any class of
shares which were acquired with varying forms of
consideration, the form of consideration to be
received by the holders of such class of shares shall
be either cash or the form used to acquire the
largest number of shares of such class of Voting
Shares 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 Equity 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 Equity
(except as necessary to reflect any
subdivision of the Common Equity) 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 Equity;
(c) such Interested Shareholder shall not
have become the beneficial owner of any
additional Voting Shares 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
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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, rules, regulations 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 Shares;
(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 Shares; or
(3) is at such time an assignee of or has otherwise
succeeded to the beneficial ownership of any Voting
Shares which were at any time within the two-year
period immediately prior to the date in question
beneficially owned by an 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
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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 an Interested Shareholder (or an
Affiliate or an Associate of an 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 Voting
Shares:
(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 Voting Shares.
E. For the purpose of determining whether a person is an
Interested Shareholder pursuant to paragraph B of this Section
3, the number of Voting Shares 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 Voting Shares which may be issuable
pursuant to any agreement, arrangement or 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
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partner or is, directly or indirectly, the beneficial owner of
ten percent (10%) 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 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 NASDAQ 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. If
different
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classes of Common Equity of the Corporation have different
Fair Market Values based on the determinations to be made
under subsection (a), then the term "Fair Market Value" of
Common Equity shall mean the highest value then ascribed to a
share of any of the various classes of Common Equity.
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 Equity
and the shares of any other class of outstanding Voting Shares
retained by the holders of such shares.
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
Voting Shares beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of 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 Equity
as to dividends or upon 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 Shares, voting together as a
single class, and
B. two-thirds of the combined voting power of the
Voting Shares 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.
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ARTICLE NINTH: The foregoing Second Restated Articles of
Incorporation hereby supersede existing Restated Articles of Incorporation as
heretofore amended.