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Exhibit 3(a)
LINCOLN ELECTRIC HOLDINGS, INC.
RESTATED ARTICLES OF INCORPORATION
ARTICLE FIRST: The name of the Corporation shall be LINCOLN
ELECTRIC HOLDINGS, INC.
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 purpose for which the Corporation is formed
is to engage in any lawful act or activity for which corporations may be formed
under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
ARTICLE FOURTH: Section 1. The maximum number of shares which
the Corporation is authorized to have outstanding is one hundred twenty-five
million (125,000,000), consisting of one hundred twenty million (120,000,000)
Common Shares, without par value ("Common Shares") and 5,000,000 Preferred
Shares, without par value ("Preferred Shares"). The Common Shares and the
Preferred Shares shall have the express terms set forth in this Article Fourth.
Section 2. Voting. Each shareholder of the Corporation shall
be entitled to one vote for each Common Share and each Preferred Share standing
in such shareholder's name on the books of the Corporation.
Section 3. Dividends. Dividends may be declared and paid to
the holders of Common Shares and Preferred 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.
Section 4. 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 5. Preferred Shares. The Preferred Shares may be
issued from time to time in series. Each Preferred Share of any one series shall
be identical with each other share of the same series in all respects, except as
to the date from which dividends thereon shall be cumulative. All Preferred
Shares of all series shall rank equally and shall be identical, except that
there may be variations in respect of the dividend rate, the dates of payment of
dividends and the dates from which they are cumulative, redemption rights and
price, sinking fund requirements, conversion rights, liquidation price, and
restrictions on the issuance of shares of the same series or of any other class
or series. Subject to the requirements that all Preferred Shares shall be
identical in respect of rights of alteration of express terms, the Board of
Directors, without any further action by the shareholders, may, at any time and
from time to time, adopt an amendment or amendments to these Restated Articles
of Incorporation, or adopt further Restated Articles of Incorporation, in
respect of any Preferred Shares that constitute unissued or treasury shares at
the time of such adoption for the purpose of dividing any or all of such
Preferred Shares into such series as the Board of Directors shall determine and
fix the express terms of any such series of Preferred Shares, which may include
statements specifying:
A. dividend rights, which may be cumulative or non-cumulative, at
a specified rate, amount or proportion, with or without
further participation rights, and in preference to, junior to,
or on a parity in whole or in part with dividend rights of
shares of any other class or series;
B. redemption rights and price;
C. sinking fund requirements, which may require the Corporation
to provide a sinking fund out of earnings or otherwise for the
purchase or redemption of such shares or for dividends
thereon;
D. conversion rights;
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E. liquidation rights, preferences and price; and
F. restrictions on the issuance of shares of any class or series
of the Corporation.
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 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 Shares
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 Shares 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 the Common Shares of
the Corporation or of any of the classes or series of capital stock of the
Corporation entitled to a preference over the Common Shares 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:
(1) The transaction constituting the Business
Combination shall provide for a consideration to be
received by holders of Common Shares in exchange for
their Common Shares, 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 Shares 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 Shares 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 Common Share
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 Common
Share determined pursuant to clause (b)
immediately preceding, multiplied by the
ratio of (x) the highest per share price
(including any brokerage commissions,
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transfer taxes and soliciting dealers' fees)
paid in order to acquire any Common 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 Common Share on the first day in
such two-year period on which the Interested
Shareholder beneficially owned any Common
Shares, 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 Shares, 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 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 Shares
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 Shares or other
capital stock entitled to a preference over
the Common Shares 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 Shares
(except as necessary to reflect any
subdivision of the Common Shares) 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 Common Shares;
(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 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
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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 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 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
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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.
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 Common Shares 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 Shares
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.
ARTICLE NINTH: The foregoing Restated Articles of Incorporation hereby
supersede the existing Articles of Incorporation.
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