Attached files
Exhibit 3(ii)
CERTIFICATE OF AMENDMENT
TO
THE
RESTATED CERTIFICATE OF INCORPORATION
OF
THE STANLEY WORKS
The Stanley Works, a corporation organized and existing under the Connecticut Business
Corporation Act (the CBCA), does hereby certify:
1:
The name of the corporation is The Stanley Works (the
Corporation).
2: The Restated Certificate of Incorporation is amended by the addition of the
provisions set forth on Exhibit A hereto, to immediately follow Section 3 and immediately precede
Section 4 of the Corporations Restated Certificate of Incorporation.
3: The amendment was adopted by resolution of the Board of Directors on December 10, 2009,
which further confirmed, adopted and approved the actions of the Board of Directors on January 31,
1996.
4: The amendment was approved by the Board of Directors. No Shareholder approval
was required.
[Signature page follows]
IN WITNESS WHEREOF, this Corporation has caused this Certificate of Amendment to the Restated
Certificate of Incorporation to be duly executed this 21st day of December, 2009.
THE STANLEY WORKS |
||||
By: | /s/ Kathryn P. Sherer | |||
Name: | Kathryn P. Sherer | |||
Title: | Assistant Secretary |
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Exhibit A
Text of Amendment
Section 3A. There shall be a series of Preferred Stock, without par value, of said
corporation having the voting powers, designation, preferences and relative, participating,
optional and other special rights and the qualifications, limitations and restrictions of such
rights, to the extent that the foregoing are not set forth elsewhere in this Certificate of
Incorporation, as follows:
(a) Designation and Amount. The shares of such series shall be designated as Series A Junior
Participating Preferred Stock and the number of shares constituting such series shall be
1,100,000.
(b) Dividends and Distributions.
(l) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the holders of shares of Series A
Junior Participating Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the last day of February, May, August and November in each year
(each such date being referred to herein as a Quarterly Dividend Payment Date), commencing
on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Junior Participating Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $20 or (b) subject to the provision for
adjustment hereinafter set forth, 200 times the aggregate per share amount of all cash
dividends, and 200 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of Common Stock or
a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, $2.50 par value, of said corporation (the Common Stock)
since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of
a share of Series A Junior Participating Preferred Stock. In the event said corporation
shall at any time (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common
Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a
reclassification of the outstanding Common Stock, then in each such case the amount to which
holders of shares of Series A Junior Participating Preferred Stock were entitled immediately
prior to such event under clause (a) and clause (b) of the preceding sentence shall be
adjusted by multiplying each such amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately prior to
such event.
(2) The corporation shall declare a dividend or distribution on the Series A
Junior Participating Preferred Stock as provided in paragraph (1) above immediately after
it declares a dividend or distribution on the Common Stock (other than a dividend payable
in shares of Common Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $20 per
share on the Series A Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(3) Dividends shall begin to accrue and be cumulative on outstanding shares of Series
A Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Junior Participating Preferred
Stock, unless the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders
of shares of Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Junior Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
(c) Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(1) Subject to the provision for adjustment hereinafter set forth, each share of Series
A Junior Participating Preferred Stock shall entitle the holder thereof to 200 votes on all
matters submitted to a vote of the shareholders of said corporation. In the event said
corporation shall at any time (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding
Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock
in a reclassification of the outstanding Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A Junior Participating Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying such number
by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
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(2) Except as otherwise provided herein or by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of Common Stock shall vote together as one
class on all matters submitted to a vote of shareholders of said corporation.
(3) (A) If at any time dividends on any Series A Junior Participating Preferred Stock
shall be in arrears in an amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a period (herein called a
default period) which shall extend until such time when all accrued and unpaid dividends
for all previous quarterly dividend periods and for the current quarterly dividend period
on all shares of Series A Junior Participating Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each default period, the holders of
Series A Junior Participating Preferred Stock shall have the right to elect two (2)
Directors.
(B) During any default period, such voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised initially at a special meeting called
pursuant to subparagraph (c)(3)(C) of this Section 3A or at any annual meeting of
shareholders, and thereafter at annual meetings of shareholders, provided that such voting
right shall not be exercised unless the holders of ten percent (l0%) in number of shares
of Series A Junior Participating Preferred Stock outstanding shall be present in person or
by proxy. The absence of a quorum of the holders of Common Stock shall not affect the
exercise by the holders of Series A Junior Participating Preferred Stock of such voting
right. At any meeting at which the holders of Series A Junior Participating Preferred Stock
shall exercise such voting right initially during an existing default period, they shall
have the right, to elect Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if such right is exercised at an
annual meeting, to elect two (2) Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the holders of the Series A Junior
Participating Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the required number.
After the holders of the Series A Junior Participating Preferred Stock shall have exercised
their right to elect Directors in any default period and during the continuance of such
period, the number of Directors shall not be increased or decreased except by vote of the
holders of Series A Junior Participating Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking senior to or pari passu with the Series A
Junior Participating Preferred Stock.
(C) Unless the holders of Series A Junior Participating Preferred Stock shall, during
an existing default period, have previously exercised their right to elect Directors, the
Board of Directors may order, or any person owning in the aggregate not less than ten
percent (l 0%) of the total number of shares of Series A Junior Participating Preferred
Stock outstanding (except as otherwise required under the laws of the State of Connecticut)
may request, the
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calling of a special meeting of the holders of Series A Junior Participating
Preferred Stock, which meeting shall thereupon be called by the Chairman of the Board, the
President, a Vice President or the Secretary of said corporation. Notice of such meeting
and of any annual meeting at which holders of Series A Junior Participating Preferred Stock
are entitled to vote pursuant to this subparagraph (c)(3)(C) shall be given to each holder
of record of Series A Junior Participating Preferred Stock by mailing a copy of such notice
to him at his last address as the same appears on the books of said corporation. Such
meeting shall be called for a time not earlier than 10 days and not later than 60 days
after such order or request; or in default of the calling of such meeting within 60 days
after such order or request, such meeting may be called on similar notice by any
shareholder or shareholders owning in the aggregate not less than ten percent (l
0%) of the total number of shares of Series A Junior Participating Preferred Stock
outstanding (except as otherwise required under the laws of the State of Connecticut).
Notwithstanding the provisions of this subparagraph (c)(3)(C), no such special meeting
shall be called during the period within 60 days immediately preceding the date fixed for
the next annual meeting of the shareholders.
(D) In any default period the holders of Common Stock, and other classes of stock of
said corporation if applicable, shall continue to be entitled to elect the whole number of
Directors until the holders of Series A Junior Participating Preferred Stock shall have
exercised their right to elect two (2) Directors after the exercise of which right (x) the
Directors so elected by the holders of Series A Junior Participating Preferred Stock shall
continue in office until their successors shall have been elected by such holders or until
the expiration of the default period, and (y) any vacancy in the Board of Directors may
(except as provided in sub-paragraph (c)(3)(C) of this Section 3A) be filled by vote of a
majority of the remaining Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have become vacant. References in this
paragraph (3) to Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided in clause (y) of
the foregoing sentence.
(E) Immediately upon the expiration of a default period, (x) the right of the holders
of Series A Junior Participating Preferred Stock to elect Directors shall cease, (y) the
term of any Directors elected by the holders of Series A Junior Participating Preferred
Stock shall terminate, and (z) the number of Directors shall be such number as may be
provided for elsewhere in this Certificate of Incorporation or the By-laws of the
corporation irrespective of any increase made pursuant to the provisions of subparagraph
(c)(3)(B) of this Section 3A (such number being subject, however, to change thereafter in any manner provided
by law or in this Certificate of Incorporation or the By-laws of the corporation). Any
vacancies in the Board of Directors effected by the provisions of clauses (y) and (z) in
the preceding sentence may be filled by a majority of the remaining Directors.
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(4) Except as set forth herein or as otherwise required under the laws of the State of
Connecticut, holders of Series A Junior Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
(d) Certain Restrictions.
(l) Whenever quarterly dividends or other dividends or distributions payable on
the Series A Junior Participating Preferred Stock as provided in paragraph (b) of this Section 3A
are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have
been paid in full, said corporation shall not:
(A) declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(B) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except dividends paid ratably on
the Series A Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;
(C) redeem or purchase or otherwise acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, provided that said corporation may
at any time redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of said corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the Series A Junior Participating
Preferred Stock; or
(D) purchase or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A
Junior Participating Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(2) The corporation shall not permit any subsidiary of said corporation to purchase or
otherwise acquire for consideration any shares of stock of said corporation
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unless said corporation could, under paragraph (d)(1) of this Section 3A, purchase or
otherwise acquire such shares at such time and in such manner.
(e) Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased
or otherwise acquired by said corporation in any manner whatsoever shall be retired promptly after
the acquisition thereof. All such shares shall upon their retirement become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(f) Liquidation, Dissolution or Winding Up.
(1) Upon any voluntary liquidation, dissolution or winding up of said corporation, no
distribution shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Series A
Junior Participating Preferred Stock shall have received $200 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to
the date of such payment (the Series A Liquidation Preference). Following the payment of
the full amount of the Series A Liquidation Preference, no additional distributions shall be
made to the holders of shares of Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have received an amount per share (the
Common Adjustment) equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 200 (as appropriately adjusted as set forth in paragraph 3 below to
reflect such events as stock splits, stock dividends and recapitalizations with respect to
the Common Stock) (such number in clause (ii), the Adjustment Number). Following the
payment of the full amount of the Series A Liquidation Preference and the Common Adjustment
in respect of all outstanding shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect
to such Series A Junior Participating Preferred Stock and Common Stock, on a per share
basis, respectively.
(2) In the event, however, that there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation preferences of
all other series of Preferred Stock, if any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets shall be distributed ratably to
the holders of such parity shares in proportion to their respective liquidation preferences.
In the event, however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of
Common Stock.
(3) In the event said corporation shall at any time (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii)
combine the outstanding Common Stock into a smaller
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number of shares, or (iv) issue any shares of its capital stock in a
reclassification of the outstanding Common Stock, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case said corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in any such case the
shares of Series A Junior Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter
set forth) equal to 200 times the aggregate amount of stock, securities; cash and/or any other
property (payable in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged. In the event said corporation shall at any time (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
(iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock in a re-classification of the outstanding Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Junior Participating Preferred Stock shall not be
redeemable.
(i) Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other
series of said corporations Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.
(i) Amendment. This Certificate of Incorporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the affirmative vote of the
holders of a majority or more of the outstanding shares of Series A Junior Participating Preferred
Stock.
(k) Fractional Shares. Series A Junior Participating Preferred Stock may be issued in
fractions of a share (to the extent permitted under the laws of the State of Connecticut), which
fractions of a share shall entitle the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series A Junior Participating Preferred Stock.
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