-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OuzbZNWPcA3FFyHdoiIEe9h7YV9jk4O9YFP2yWyQjeQXV3CF1HsBHCeVc6x7ojJt F3wYr0Txgj31ytEef4zl6w== 0000950152-98-005042.txt : 19980603 0000950152-98-005042.hdr.sgml : 19980603 ACCESSION NUMBER: 0000950152-98-005042 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980602 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980602 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: LINCOLN ELECTRIC CO CENTRAL INDEX KEY: 0000059527 STANDARD INDUSTRIAL CLASSIFICATION: METALWORKING MACHINERY & EQUIPMENT [3540] IRS NUMBER: 340359955 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-01402 FILM NUMBER: 98641076 BUSINESS ADDRESS: STREET 1: 22801 ST CLAIR AVE CITY: CLEVELAND STATE: OH ZIP: 44117 BUSINESS PHONE: 2164818100 8-K 1 THE LINCOLN ELECTRIC COMPANY FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): June 2, 1998 THE LINCOLN ELECTRIC COMPANY (Exact name of registrant as specified in its charter) Ohio 0-1402 34-0359955 (State or other jurisdiction (Commission File No.) (IRS Employer of incorporation) Identification No.) 22801 St. Clair Avenue, Cleveland, OH 44117 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (216) 481-8100 N/A (Former name or former address, if changed since last report) 2 Item 1. Changes in Control of Registrant. Pursuant to an Agreement of Merger, Lincoln Electric Merger Co., an Ohio corporation, merged with and into The Lincoln Electric Company, an Ohio corporation (the "Company"), with the Company being the surviving corporation (the "Merger"). In connection with the Merger, each of the Company's outstanding Common Shares and Class A Common Shares was converted into two common shares of Lincoln Electric Holdings, Inc. ("Holding Common Shares"), an Ohio corporation ("Lincoln Electric Holdings"), with the result that Lincoln Electric Holdings is the publicly held corporation and the Company is a wholly owned subsidiary of Lincoln Electric Holdings. The shareholders of the Company immediately prior to the Merger were the shareholders of Lincoln Electric Holdings immediately after the Merger. The Merger was effective on June 2, 1998. The Holding Common Shares are deemed to be registered under Section 12(g) of the Securities Act of 1934, as amended, pursuant to Rule 12g-3(a) promulgated thereunder. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. Exhibits - -------- 2 Agreement of Merger dated as of May 19, 1998 made by and among Lincoln Electric Merger Co., The Lincoln Electric Company, and Lincoln Electric Holdings, Inc. 3(a) Restated Articles of Incorporation of Lincoln Electric Holdings, Inc. 3(b) Code of Regulations of Lincoln Electric Holdings, Inc. 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. THE LINCOLN ELECTRIC COMPANY By: /s/ H. Jay Elliott ------------------------------------------ H. Jay Elliott Senior Vice President, Chief Financial Officer and Treasurer Date: June 2, 1998 4 Exhibit Index
Exhibit Description of Exhibit - ------- ---------------------- 2 Agreement of Merger dated as of May 19, 1998 made by and among Lincoln Electric Merger Co., The Lincoln Electric Company, and Lincoln Electric Holdings, Inc. 3(a) Restated Articles of Incorporation of Lincoln Electric Holdings, Inc. 3(b) Code of Regulations of Lincoln Electric Holdings, Inc.
EX-2 2 EXHIBIT 2 1 Exhibit 2 AGREEMENT OF MERGER THIS AGREEMENT OF MERGER (this "AGREEMENT"), dated as of May 19, 1998, is made by and among LINCOLN ELECTRIC MERGER CO., an Ohio corporation ("MERGER CO."), THE LINCOLN ELECTRIC COMPANY, an Ohio corporation ("LINCOLN"), and LINCOLN ELECTRIC HOLDINGS, INC., an Ohio corporation ("HOLDING COMPANY"). RECITALS WHEREAS, Merger Co. is a corporation duly organized and existing under the laws of the State of Ohio, and the authorized capital stock of Merger Co. consists of 100 common shares, without par value, 100 shares of which are issued and outstanding and held by Holding Company, and no shares of which are held in Merger Co.'s treasury; WHEREAS, Lincoln is a corporation duly organized and existing under the laws of the State of Ohio, and the authorized capital stock of Lincoln consists of 60,000,000 common shares, without par value (the "COMMON SHARES"), and 60,000,000 class A common shares, without par value (the "CLASS A COMMON SHARES"), 10,777,834 and 13,862,190 shares of which, respectively, are issued and outstanding, and no shares of which are held in Lincoln's treasury. WHEREAS, Holding Company is a corporation duly organized and existing under the laws of the State of Ohio, and the authorized capital stock of Holding Company consists of 120,000,000 common shares, without par value (the "HOLDING COMMON SHARES"), and 5,000,000 preferred shares, without par value (the "PREFERRED SHARES"), ten of which Holding Common Shares have been issued. WHEREAS, Lincoln and Merger Co. desire to effect a merger whereby Merger Co. will merge with and into Lincoln (the "MERGER"), with Lincoln to be the surviving corporation; WHEREAS, the respective boards of directors of Merger Co., Holding Company and Lincoln have adopted resolutions approving this Agreement, the execution and delivery of this Agreement and the transactions contemplated hereby, and have determined that it is advisable that Merger Co. be merged with and into Lincoln, pursuant to and in accordance with the applicable laws of the State of Ohio and otherwise upon the terms and conditions set forth herein; WHEREAS, the board of directors of Holding Company has adopted resolutions approving the conversion of shares of Lincoln into Holding Common Shares; NOW THEREFORE, in consideration of the foregoing and the respective covenants, agreements and conditions hereinafter contained, the parties do hereby covenant and agree as follows: AGREEMENTS ARTICLE I THE MERGER 1.1 THE MERGER. Subject to the terms and conditions of this Agreement, at the Effective Time (as defined in Section 1.2), and in accordance with the terms and conditions of Ohio Revised Code Section 1701.78, Merger Co. shall be merged with and into Lincoln. At the Effective Time, the separate corporate existence of Merger Co. shall cease, and Lincoln shall continue its existence as the surviving corporation under the laws of the State of Ohio (the "SURVIVING CORPORATION"). The name of the Surviving Corporation shall be The Lincoln Electric Company. 2 1.2 EFFECTIVE TIME. Upon the satisfaction of the conditions set forth in Article VI of this Agreement, a certificate of merger shall be duly executed by each of Merger Co. and Lincoln and filed with the Secretary of State of Ohio pursuant to Ohio Revised Code Section 1701.81. The Merger shall become effective upon such filing in accordance with the provisions of Ohio Revised Code Section 1701.81 (the "EFFECTIVE TIME"). 1.3 EFFECTS OF THE MERGER. At the Effective Time of the Merger, the effects of the Merger shall occur as provided in Ohio Revised Code Section 1701.82. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, the name, identity, existence, rights, privileges, powers, franchises, properties and assets of Lincoln shall continue unaffected and unimpaired, and the separate existence of Merger Co. shall cease and all of the rights, privileges, powers, franchises, properties and assets of Merger Co. shall be vested in Lincoln. ARTICLE II THE SURVIVING CORPORATION 2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of the Surviving Corporation, effective as of the Effective Time, will be as set forth as Exhibit A; and shall be the Articles of Incorporation of the Surviving Corporation until altered, amended or repealed in accordance with the provisions thereof and with the Ohio Revised Code. 2.2 CODE OF REGULATIONS. The Code of Regulations of the Surviving Corporation, effective as of the Effective Time, will be as set forth as Exhibit B; and shall be the Code of Regulations of the Surviving Corporation until altered, amended or repealed in accordance with the provisions thereof and with the Ohio Revised Code. 2.3 DIRECTORS OF SURVIVING CORPORATION. Each person who is a director of Merger Co. immediately prior to the Effective Time shall continue to be a director of the Surviving Corporation from and after the Effective Time until his or her successor is duly elected or appointed, or until his or her death, resignation or removal. 2.4 OFFICERS OF SURVIVING CORPORATION. The officers of Lincoln immediately prior to the Effective Time shall be the officers of the Surviving Corporation from and after the Effective Time until his or her successor is duly elected or appointed, or until his or her death, resignation or removal. 2.5 DIVIDENDS. Holding Company and Merger Co. hereby consent to any declaration by Lincoln prior to the Effective Time of any cash dividends payable to shareholders of Lincoln who are such as of any date prior to the Effective Time which is selected as the record date for such cash dividend. If the payment date for such cash dividend is prior to the Effective Time, Holding Company and Merger Co. hereby consent to the payment by Lincoln of such cash dividend. If the payment date for such cash dividend is after the Effective Time, then Lincoln, as the Surviving Corporation, shall be and remain responsible for the payment of any such cash dividend, and Holding Company shall cause Lincoln, as the Surviving Corporation, to pay such cash dividend to the record date shareholders entitled thereto. ARTICLE III MANNER, BASIS AND EFFECT OF CONVERTING SHARES 3.1 CONVERSION OF SHARES. At the Effective Time: (a) Each common share of Merger Co. issued and outstanding prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into a common share of the Surviving Corporation. (b) Each Common Share of Lincoln issued and outstanding prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into two Holding Common Shares. 2 3 (c) Each Class A Common Share of Lincoln issued and outstanding prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into two Holding Common Shares. (d) Each Holding Common Share issued and outstanding prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be canceled and the holder thereof shall become entitled to receipt of an amount equal to the initial subscription price paid therefor. 3.2 SHARE CERTIFICATES. Each share certificate which immediately prior to the Effective Time represented an outstanding common share of Merger Co. shall represent a common share of the Surviving Corporation. After the Effective Time, each share certificate representing an outstanding Common Share or Class A Common Share shall represent the same number of Holding Common Shares. From and after the Effective Time, the holders of certificates for Common Shares and Class A Common Shares shall cease to have any rights as shareholders of Lincoln (except such rights, if any, as they may have as dissenting shareholders), and, except as aforesaid, their sole rights shall pertain to the Holding Common Shares into which their Common Shares and Class A Common Shares shall have been converted by the Merger. 3.3 DISSENTING LINCOLN SHAREHOLDERS. Each holder of one or more Common Shares or Class A Common Shares who shall have been a record holder of such shares as of the date fixed for the determination of shareholders entitled to notice of the Annual Meeting and who shall have delivered to Lincoln, not later then ten days after the date on which the vote on this Agreement was taken at the Annual Meeting, a written demand for payment to such holder of the fair cash value of such shares in compliance with Ohio Revised Code Section 1701.85, and whose such shares shall not have been voted in favor of adoption of this Agreement, shall cease to have any of the rights of a shareholder in respect of such shares except the right to be paid the fair cash value of such shares and any other rights bestowed under Ohio Revised Code Sections 1701.84 and 1701.85. However, any such shareholder who shall validly withdraw such shareholder's written demand for payment of the fair cash value of such shares pursuant to Ohio Revised Code Sections 1701.84 and 1701.85 will thereupon be reinstated to all such shareholder's rights as a shareholder in respect of such shares as of the date of delivery of such shareholder's written demand to Lincoln, subject to the provisions of Section 3.1 of this Agreement, and will be entitled to receive the Holding Common Shares into which such shareholder's Common Shares and Class A Common Shares were converted as of the Effective Time pursuant hereto. 3.4 TRANSFERS. The stock transfer books of Lincoln shall be closed at the close of business on the business day immediately preceding the Effective Time and the holders of record of Common Shares and Class A Common Shares as of the Effective Time shall be the shareholders entitled to conversion of their Common Shares and Class A Common Shares into Holding Common Shares as provided in this Agreement. In the event of a transfer of ownership of any such Common Shares or Class A Common Shares which transfer is not registered in the stock transfer records of Lincoln, the Holding Common Shares may be issued to a transferee if the certificate representing such Common Shares or Class A Common Shares is accompanied upon surrender by all documents required to evidence and effect such transfer and payment of any applicable stock transfer taxes. ARTICLE IV CERTAIN AGREEMENTS 4.1 REGISTRATION OF HOLDING COMPANY SHARES. At or prior to the Effective Time, Holding Company shall register under the Securities Act of 1933, as amended, the maximum number of Holding Common Shares required to be exchanged for Common Shares and Class A Common Shares, respectively, pursuant to this Agreement. 4.2 STOCK PLANS. At or prior to the Effective Time, Holding Company shall assume Lincoln's 1988 Incentive Equity Plan (the "IEP") and, if then established, 1998 Stock Option Plan (together with the IEP, the "STOCK PLANS") with amendments thereto as deemed appropriate by the respective Boards of Directors of Lincoln and Holding Company, including all obligations associated with any valid options ("OPTIONS") to purchase or right to receive under restricted stock awards Common Shares or Class A Common Shares under the Stock Plans. Thereafter, each such Option to purchase Common Shares shall be the valid and enforceable option to purchase twice such number of Holding Common Shares (instead of Common Shares) at a purchase price per Holding Common Share equal to one-half the 3 4 purchase price per Common Share. In addition, thereafter each such Option to purchase Class A Common Shares shall be the valid and enforceable option to purchase twice such number of Holding Common Shares (instead of Class A Common Shares) at a purchase price per Holding Common Share equal to one-half the purchase price per Class A Common Share. Except as set forth above, each such Option shall be on the same terms and conditions and have the same provisions which are contained therein immediately prior to the Effective Time. 4.3 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS AND 1995 LINCOLN STOCK PURCHASE PLAN. At the Effective Time, Holding Company shall take or cause to be taken all actions necessary or advisable to assume each of Lincoln's Non-Employee Directors' Restricted Stock Plan and 1995 Lincoln Stock Purchase Plan and all obligations of Lincoln with respect thereto, and all rights to receive Common Shares or Class A Common Shares thereunder shall become rights to receive Holding Common Shares. 4.4 ELECTION OF DIRECTORS. The sole shareholder of Holding Company, shall, subsequent to the adoption and approval of this Agreement as provided in Section 6.1, but prior to the Effective Time, duly convene a meeting of the sole shareholder of Holding Company (or act by written consent of such shareholder in lieu of a meeting) and shall take or cause to be taken all action necessary, in accordance with the Regulations of Holding Company and the Ohio Revised Code, to install as Directors of Holding Company, who shall serve until the next annual meeting of shareholders of Holding Company or until their respective successors have been elected and qualified, all persons who are named as directors and as nominees for director of Lincoln in the proxy statement used by the directors of Lincoln to solicit proxies for use at the 1998 Annual Meeting of shareholders. 4.5 SETTLEMENT OPTIONS. At the Effective Time, Holding Company shall take or cause to be taken all actions necessary or advisable to assume all obligations of Lincoln to issue Class A Common Shares under that certain settlement dated April, 1996 concerning awards under Lincoln's IEP and the option agreements related to such settlement. Thereafter, each such option to purchase Class A Common Shares shall be the valid and enforceable option to purchase twice such number of Holding Common Shares (instead of Class A Common Shares) at a purchase price per Holding Common Share equal to one-half the purchase price per Class A Common Share. ARTICLE V REPRESENTATIONS AND WARRANTIES 5.1 MERGER CO. Merger Co. represents and warrants to Lincoln and to Holding Company as follows: (a) Merger Co. is a corporation duly formed, validly existing and in good standing under the laws of the State of Ohio. Merger Co. has the corporate power and authority to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. Merger Co. has duly authorized, executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding agreement of Merger Co., enforceable in accordance with its terms. (b) Merger Co. does not own any property or assets and does not conduct any business. (c) The entire authorized capital stock of Merger Co. consists of 100 shares of common stock, with no par value per share. As of the date of this Agreement and as of the Effective Time, (i) 100 common shares of Merger Co. are and will be issued and outstanding, all of which shares are owned of record by Holding Company, and (ii) no common shares of Merger Co. are or will be held in treasury. 5.2 HOLDING COMPANY. Holding Company represents and warrants to Lincoln and to Merger Co. as follows: (a) Holding Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio. Holding Company has the corporate power and authority 4 5 to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. Holding Company has duly authorized, executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding agreement of Holding Company, enforceable in accordance with its terms. (b) Holding Company does not own any property or assets other than the common shares of Merger Co. and does not conduct any business. (c) Holding Company is the sole beneficial owner of 100 common shares of Merger Co. (d) The entire authorized capital stock of Holding Company is 120,000,000 Holding Common Shares and 5,000,000 Preferred Shares. As of the date of this Agreement, and as of immediately prior to the Effective Time, (i) ten Holding Common Shares and no Preferred Shares are or will be outstanding and (ii) no Holding Common Shares and no Preferred Shares are held in treasury. 5.3 LINCOLN. Lincoln represents and warrants to Holding Company and to Merger Co. as follows: Lincoln has the corporate power and authority to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. Lincoln has duly authorized, executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding agreement of Lincoln, enforceable in accordance with its terms. ARTICLE VI CONDITIONS TO MERGER The consummation of the Merger is subject to the satisfaction, in the sole judgment of the Board of Directors of Lincoln, of the following conditions prior to the Effective Time: 6.1 SHAREHOLDER APPROVAL. This Agreement shall have received the approval of two-thirds of the issued and outstanding Common Shares and two-thirds of the issued and outstanding Class A Common Shares entitled to vote. 6.2 PERFORMANCE OF AGREEMENTS. Merger Co. and Holding Company shall have performed all their respective obligations and agreements required by this Agreement to be performed by them at or prior to the Effective Time. 6.3 TAX MATTERS. Lincoln shall have received an opinion of Jones, Day, Reavis & Pogue, satisfactory in form and substance to Lincoln, as to such matters relating to the tax consequences of the transactions contemplated by this Agreement as the Board of Directors of Lincoln may deem advisable including, without limitation, an opinion of such counsel to the effect that the Merger constitutes a "reorganization" within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code. 6.4 OPINION OF COUNSEL. Lincoln shall have received an opinion of Jones, Day, Reavis & Pogue, satisfactory in form and substance to Lincoln, to the effect that: (a) each of Merger Co. and Holding Company is a corporation duly formed, validly existing and in good standing under the laws of the State of Ohio; (b) Lincoln is a corporation validly existing and in good standing under the laws of the State of Ohio; 5 6 (c) this Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement or obligation of, each of Lincoln, Merger Co. and Holding Company; (d) neither the execution and delivery of this Agreement nor the performance by Lincoln, Merger Co., or Holding Company, respectively, of any of its obligations hereunder will conflict with such company's articles of incorporation or code of regulations; (e) the Holding Common Shares required to be issued and delivered by Holding Company upon the Merger are duly authorized and will, when issued as contemplated in this Agreement, be validly issued, fully paid and nonassessable. 6.5 DISSENTING SHARES. Lincoln shall not have received notice from the holder or holders of more than 10% of the outstanding Common Shares and Class A Common Shares, in the aggregate, that such holder or holders have exercised or intend to exercise its or their dissenters' rights under Section 1701.85 of the Ohio Revised Code and the time for the holders of Common Shares and Class A Common Shares to give such notice shall have expired. 6.6 MISCELLANEOUS APPROVALS. Lincoln, Merger Co. and Holding Company, as appropriate, shall have received all orders, consents and approvals, governmental or otherwise, which in the opinion of Lincoln, are required by law or advisable to the consummation of the Merger, except for filings in connection with the Merger and any other documents required to be filed after the Effective Time. 6.7 NO PROHIBITION. None of Lincoln, Merger Co. or Holding Company shall be subject to any order or injunction of a court of competent jurisdiction that prohibits the consummation of the transactions contemplated by this Agreement or that would make the consummation of the Merger by Lincoln, Merger Co. or Holding Company illegal. 6.8 STEPS TO EFFECT MERGER. Upon the satisfaction or waiver by Lincoln of each of the conditions set forth in this Article VI, the officers of each of Lincoln, Merger Co. and Holding Company shall take all steps necessary in order to make effective the Merger as provided herein. ARTICLE VII MISCELLANEOUS 7.1 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 7.2 HEADINGS. The captions contained in this Agreement are for convenience of reference only and do not form a part of this Agreement. When a reference is made in this Agreement to a section, such reference shall be to a section of this Agreement unless otherwise indicated. 7.3 COMPLETE AGREEMENT. This Agreement contains the complete agreement among the parties hereto with respect to the Merger and supersedes all prior agreements and understandings with respect to the Merger. 7.4 BINDING EFFECTS; BENEFITS. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns; provided however, that nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement. 7.5 GOVERNING LAW. This Agreement shall be construed and interpreted in accordance with the laws of the State of Ohio, without giving effect to principles of conflicts of laws. 7.6 AMENDMENT, DEFERRAL AND ABANDONMENT. (a) The parties hereto, by mutual consent of their respective Boards of Directors, may amend, modify or supplement this Agreement in writing at any time prior or subsequent to the adoption and approval of the Agreement by the shareholders of Lincoln and prior to the Effective Time; provided, however, that no such amendment, modification or supplement shall affect the rights of the respective 6 7 shareholders of the parties hereto in a manner which is materially adverse to such shareholders in the judgment of the respective Boards of Directors of the parties hereto. (b) Notwithstanding the adoption and approval of this Agreement by the shareholders of Lincoln, Holding Company or Merger Co., consummation of the transactions provided for herein may be deferred by the Board of Directors of Lincoln at any time prior to the Effective Time, if such Board of Directors determines that such deferral would be in the best interests of Lincoln or its shareholders. (c) Notwithstanding the adoption and approval of this Agreement by the shareholders of Lincoln, this Agreement may be terminated, and the Merger and other transactions provided for herein may be abandoned, by the Board of Directors of Lincoln at any time prior to the Effective Time if such Board of Directors determines that such abandonment would be in the best interests of Lincoln or its shareholders. In such event, this Agreement shall forthwith be wholly void and of no effect and there shall be no liability with respect to this Agreement on the part of any party hereto or any of their respective directors, officers, employees or shareholders. 7 8 IN WITNESS WHEREOF, each of Merger Co., Lincoln and Holding Company have caused this Agreement to be duly executed by its duly authorized officer as of the day and year first above written. LINCOLN ELECTRIC MERGER CO. By: /s/ FREDERICK G. STUEBER -------------------------------------- Name: Frederick G. Stueber Title: Senior Vice President, General Counsel and Secretary THE LINCOLN ELECTRIC COMPANY By: /s/ ANTHONY A. MASSARO -------------------------------------- Name: Anthony A. Massaro Title: Chairman, President and Chief Executive Officer LINCOLN ELECTRIC HOLDINGS, INC. By: /s/ ANTHONY A. MASSARO -------------------------------------- Name: Anthony A. Massaro Title: Chairman, President and Chief Executive Officer 8 9 EXHIBIT A THE LINCOLN ELECTRIC COMPANY THIRD RESTATED ARTICLES OF INCORPORATION FIRST: The name of the Corporation shall be The Lincoln Electric Company. SECOND: The principal office of the Corporation in the State of Ohio is to be located in the City of Cleveland, County of Cuyahoga. 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. FOURTH: The number of shares which the Corporation is authorized to have outstanding is 100 shares of Common Stock, without par value. FIFTH: The Corporation will commence business without any allocation to stated capital. SIXTH: No holders of any class of shares of the Corporation shall have any pre-emptive right to purchase or have offered to them for purchase any shares or other securities of the Corporation. SEVENTH: The holders of shares of the Corporation shall not be entitled to cumulative voting rights in the election of Directors. EIGHTH: The Corporation may from time to time, pursuant to authorization by the 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 Directors shall determine; 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. NINTH: Any and every statute of the State of Ohio hereafter enacted, whereby the rights, powers or privileges of corporations or of the shareholders of corporations organized under the laws of the State of Ohio are increased or diminished or in any way affected, or whereby effect is given to the action taken by any number, less than all, of the shareholders of any such corporation, shall apply to the Corporation and shall be binding not only upon the Corporation but upon every shareholder of the Corporation to the same extent as if such statute had been in force at the date of filing these Articles of Incorporation of the Corporation in the office of the Secretary of State of Ohio. 10 EXHIBIT B THE LINCOLN ELECTRIC COMPANY THIRD RESTATED CODE OF REGULATIONS ARTICLE I SHAREHOLDERS' MEETINGS Section 1. Annual Meeting. The annual meeting of shareholders shall be held at such date, time and place as may be designated from time to time by the Board of Directors for the election of Directors and the consideration of reports to be laid before such meeting. Upon due notice, there may also be considered and acted upon at an annual meeting any matter which could 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 the annual meeting is not held or Directors are not elected thereat, they may be elected at a special meeting called for that purpose. Section 2. Special Meetings. Special meetings of shareholders may be called by (i) the Chairman of the Board or the President or a Vice President, (ii) the Directors by action at a meeting, or by a majority of the Directors acting without a meeting, or (iii) the person or persons who hold not less than 50 percent of all shares outstanding and entitled to be voted at said meeting. Upon request in writing delivered either in person or by registered mail to the President or Secretary by any person or persons entitled to call a meeting of shareholders, such officer shall forthwith cause to be given, to the shareholders entitled thereto, notice of a meeting to be held not less than seven nor more than 60 days after the receipt of such request, as such officer shall fix. If such notice is not given within 20 days after the delivery or mailing of such request, the person or persons calling the meeting may fix the time of the meeting and give, or cause to be given, notice in the manner hereinafter provided. Section 3. Place of Meetings. Any meeting of shareholders may be held either at the principal office of the Corporation or at such other place within or without the State of Ohio as may be designated in the notice of said meeting. Section 4. Notice of Meetings. Not more than 60 days nor less than seven days before the date fixed for a meeting of shareholders, whether annual or special, written notice of the time, place and purposes of such meeting shall be given by or at the direction of the President, a Vice President, the Secretary or an Assistant Secretary. Such notice shall be given either by personal delivery or by mail to each shareholder of record entitled to notice of such meeting. If such notice is mailed, it shall be addressed to the shareholders at their respective addresses as they appear on the records of the Corporation, and notice shall be deemed to have been given on the day so mailed. Notice of adjournment of a meeting need not be given if the time and place to which it is adjourned are fixed and announced at such meeting. Section 5. Shareholders Entitled to Notice and to Vote. If a record date shall not be fixed pursuant to statutory authority, the record date for the determination of shareholders who are entitled to notice of, or who are entitled to vote at, a meeting of shareholders, shall be the close of business on the date next preceding the day on which notice is given, or the close of business on the date next preceding the day on which the meeting is held, as the case may be. 11 Section 6. Inspectors of Election; List of Shareholders. Inspectors of election may be appointed to act at any meeting of shareholders in accordance with the Ohio General Corporation Law. At any meeting of shareholders, an alphabetically arranged list, or classified lists, of the shareholders of record as of the applicable record date who are entitled to vote, showing their respective addresses and the number and classes of shares held by each, shall be produced on the request of any shareholder. Section 7. Quorum. To constitute a quorum at any meeting of shareholders, there shall be present in person or by proxy shareholders of record entitled to exercise not less than a majority of the voting power of the Corporation in respect of any one of the purposes for which the meeting is called. The holders of a majority of the voting power represented in person or by proxy at a meeting of shareholders, whether or not a quorum be present, may adjourn the meeting from time to time. Section 8. Voting. In all cases, except as otherwise expressly required by statute, the Articles of Incorporation of the Corporation or these Regulations, a majority of the votes cast at a meeting of shareholders shall control. An abstention shall not represent a vote cast. Section 9. Reports to Shareholders. At the annual meeting, or the meeting held in lieu thereof, the officers of the Corporation shall lay before the shareholders a financial statement as required by the Ohio General Corporation Law. 2 12 Section 10. Action Without a Meeting. Except as otherwise provided in these Regulations, any action which may be authorized or taken at a meeting of the shareholders may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by, all of the shareholders who would be entitled to notice of a meeting for such purpose, which writing or writings shall be filed with or entered upon the records of the Corporation. Section 11. Chairman of Meeting. The chairman of any meeting of shareholders shall be the Chairman of the Board or, if the Directors have not elected a Chairman of the Board, the President of the Corporation. The Chairman of the Board or, if the Directors have not elected a Chairman of the Board or the Chairman of the Board is unavailable to do so, the President may appoint any other officer of the Corporation to act as chairman of any shareholders' meeting. Notwithstanding the foregoing, the Directors may appoint any individual to act as chairman of any shareholders' meeting. ARTICLE II DIRECTORS Section 1. Election, Number and Term of Office. The Directors shall be elected at the annual meeting of shareholders, or if not so elected, at a special meeting of shareholders called for that purpose, and each Director shall hold office until the date fixed by these Regulations for the next succeeding annual meeting of shareholders and until his successor is elected, or until his earlier resignation, removal from office or death. At any meeting of shareholders at which Directors are to be elected, only persons nominated as candidates shall be eligible for election. The number of Directors, which shall not be less than three (unless all of the shares of the Corporation are owned of record by one or two shareholders, in which case the number of Directors may be less than three but not less than the number of shareholders), may be fixed or changed 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 represented at the meeting and entitled to vote on such proposal. In case the shareholders at any meeting for the election of Directors shall fail to fix the number of Directors to be elected, the number elected shall be deemed to be the number of Directors so fixed. Section 2. Meetings. Regular meetings of the Directors shall be held immediately after the annual meeting of shareholders and at such other times and places as may be fixed by the Directors, and such meetings may be held without further notice. Special meetings of the Directors may be called by the Chairman of the Board or by the President or by a Vice President or by the Secretary of the Corporation, or by not less than one-third of the Directors. Notice of the time and place of a special meeting shall be served upon or telephoned to each Director at least 24 hours, or mailed, telegraphed or cabled to each Director at least 48 hours, prior to the time of the meeting. Section 3. Quorum and Voting. A majority of the number of Directors then in office (but in no event more than a majority of Directors then in office) shall be necessary to constitute a quorum for the transaction of business, but if at any meeting of the Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time without notice other than announcement at the meeting until a quorum shall attend. In all cases, except as otherwise expressly required by statute, the Articles of Incorporation of the Corporation or these Regulations, the act of a majority of the Directors present at a meeting at which a quorum is present is the act of the Directors. 3 13 Section 4. Action Without a Meeting. Any action which may be authorized or taken at a meeting of the Directors may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by, all of the Directors, which writing or writings shall be filed with or entered upon the records of the Corporation. Section 5. Committees. The Directors may from time to time create a committee or committees of Directors to act in the intervals between meetings of the Directors and may delegate to such committee or committees any of the authority of the Directors other than that of filling vacancies among the Directors or in any committee of the Directors. No committee shall consist of less than three Directors. The 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 any meeting of such committee. In particular, the Directors may create and define the powers and duties of an Executive 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. Unless otherwise ordered by the Directors, a majority of the members of any committee appointed by the 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 Directors, and shall keep a written record of all action taken by it. ARTICLE III OFFICERS Section 1. Officers. The Corporation may have a Chairman of the Board (who shall be a Director) and shall have a President, a Secretary and a Treasurer. The Corporation may also have one or more Vice Presidents and such other officers and assistant officers as the Directors may deem necessary. All of the officers and assistant officers shall be elected by the Directors. Section 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 Directors, regardless of whether such authority and duties are customarily incident to such office. ARTICLE IV INDEMNIFICATION AND INSURANCE Section 1. Indemnification. The Corporation shall indemnify, to the full extent then permitted by law, 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 member of the Board of Directors or an 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, partnership, joint venture, trust or other enterprise. The Corporation shall pay, to the full extent then required by law, expenses, including attorney's fees, incurred by a member 4 14 of the Board of Directors in defending any such action, suit or proceeding as they are incurred, in advance of the final disposition thereof, and may pay, in the same manner and to the full extent then permitted by law, such expenses incurred by any other person. The indemnification and payment of expenses provided hereby shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under any law, the Articles of Incorporation, any agreement, vote of shareholders or disinterested members of the Board of Directors, or otherwise, both as to action in official capacities and as to action in another capacity while he is a member of the Board of Directors, officer, employee or agent of the Corporation, and shall continue as to a person who has ceased to be a member of the Board of Directors, trustee, officer, employee or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. Section 2. Insurance. The Corporation may, to the full extent then permitted by law and authorized by the Directors, 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 persons described in Section 1 against any liability asserted against and incurred by any such person in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such liability. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest. Section 3. Agreements. The Corporation, upon approval by the Board of Directors, may enter into agreements with any persons whom the Corporation may indemnify under these Regulations or under law and undertake thereby to indemnify such persons and to pay the expenses incurred by them in defending any action, suit or proceeding against them, whether or not the Corporation would have the power under these Regulations or law to indemnify any such person. ARTICLE V MISCELLANEOUS Section 1. Transfer and Registration of Certificates. The Directors shall have authority to make such rules and regulations as they deem expedient concerning the issuance, transfer and registration of certificates for shares and the shares represented thereby and may appoint transfer agents and registrars thereof. Section 2. Substituted Certificates. Any person claiming a certificate for shares to have been lost, stolen or destroyed shall make an affidavit or affirmation of that fact, shall give the Corporation and its registrar or registrars and its transfer agent or agents a bond of indemnity satisfactory to the Directors or to the Executive Committee or to the President or a Vice President and the Secretary or the Treasurer, and, if required by the Directors or the Executive Committee or such officers, shall advertise the same in such manner as may be required, whereupon a new certificate may be executed and delivered of the same tenor and for the same number of shares as the one alleged to have been lost, stolen or destroyed. Section 3. Voting of Shares Held by the Corporation. Unless otherwise ordered by the Directors, any officer or assistant officer of the Corporation, in person or by proxy or proxies appointed by him, shall have full power and authority on behalf of the Corporation to vote, act and consent with respect to any shares issued by other corporations which the Corporation may own. Section 4. Amendments. These Regulations may be amended by the affirmative vote or the written consent of the shareholders of record entitled to exercise a majority of the voting power on such proposal; provided, however, that if an amendment is adopted by written consent without a meeting of the shareholders, the Secretary shall mail a copy of such amendment to each shareholder of record who would have been entitled to vote thereon and did not participate in the adoption thereof. 5 EX-3.A 3 EXHIBIT 3(A) 1 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; 2 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 2 3 (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, 3 4 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. 4 5 (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 5 6 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 6 7 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. 7 EX-3.B 4 EXHIBIT 3(B) 1 Exhibit 3(b) L I N C O L N E L E C T R I C H O L D I N G S, I N C. CODE OF REGULATIONS ARTICLE I SHARES 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. 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. 2 ARTICLE II MEETINGS OF SHAREHOLDERS 1. ANNUAL MEETING. The Annual Meeting of shareholders shall be held at such date, time and place as may be designated from time to time by the Board of Directors, 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. 2. SPECIAL MEETINGS. Special meetings of the shareholders may be called by the President, or an Executive or Senior 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 or entered upon the records of the meeting, either before or after the holding thereof. 2 3 4. 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. 5. 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. ARTICLE III BOARD OF DIRECTORS 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 3 4 their successors, and Directors elected at the 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 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. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the President on one day's notice to each Director by whom such notice is not waived, given either personally or by mail, telephone, telegram, telex, facsimile or similar medium of communication, and will be called by the Chairman of the Board of Directors or the President, in like manner and on like notice, on the written request of not less than one-third of the Board of Directors. 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. 4 5 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 INDEMNIFICATION AND INSURANCE 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 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 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, 5 6 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 NOMINATION OF DIRECTOR CANDIDATES 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 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. 6 7 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 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 COMMITTEES 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 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. 7 8 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 Article VI 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 Directors, and shall keep a written record of all action taken by it. ARTICLE VII OFFICERS 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 COMPENSATION OF DIRECTORS AND OFFICERS The compensation of the Directors and officers of the Corporation shall be such as the Board of Directors may from time to time designate. 8 9 ARTICLE IX AMENDMENTS 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. 9 -----END PRIVACY-ENHANCED MESSAGE-----