EXHIBIT (3)(A)
RESTATED
CERTIFICATE OF INCORPORATION
OF SNAP-ON INCORPORATED
SNAP-ON INCORPORATED, a corporation organized and existing under the
laws of the State of Delaware, does hereby certify as follows:
1. The name of the corporation is "SNAP-ON INCORPORATED"
(hereinafter referred to as the "Corporation"), and the name under which the
Corporation was originally incorporated is "Snap-on Tools, Inc." The date of
filing its original Certificate of Incorporation with the Secretary of State was
April 7, 1930.
2. This Restated Certificate of Incorporation was duly adopted by
the Board of Directors of the Corporation in accordance with Section 245 of the
General Corporation Law of the State of Delaware.
3. This Restated Certificate of Incorporation restates and
integrates the provisions of the Restated Certificate of Incorporation of the
Corporation as heretofore amended or supplemented and there is no discrepancy
between those provisions and the provisions of this Restated Certificate of
Incorporation.
4. The text of the Restated Certificate of Incorporation as
heretofore amended or supplemented is hereby further restated to read as herein
set forth in full:
FIRST: The name of the Corporation is Snap-on Incorporated.
SECOND: The location of its principal office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, State of Delaware. The name of its resident agent
therein, and in charge of said office, is The Corporation Trust Company whose
address is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware.
THIRD: The nature of the business or objects or purposes to be
transacted, promoted or carried on by the Corporation are to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is one hundred twenty-five million
(125,000,000) shares of Common Stock with the par value of one dollar ($1.00)
per share and fifteen million (15,000,000) shares of Preferred Stock with the
par value of one dollar ($1.00) per share.
The following is a description of each of the classes of stock of the
Corporation and a statement of the powers, preferences and rights of such stock,
and the qualifications and restrictions thereof:
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(a) At all meetings of the shareholders of the Corporation the
holders of the Common Stock shall be entitled to one vote for each share of
Common Stock held by them respectively.
(b) Shares of the Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the Board of
Directors of the Corporation. Each series shall be distinctly designated.
Except as otherwise provided in the resolution setting forth the designations
and rights of the series of Preferred Stock, all shares of any one series of the
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends (if any) thereon shall be cumulative, if
made cumulative.
The relative preferences, participating, optional and other special
rights of each such series, and limitations thereof, if any, may differ from
those of any and all other series at any time outstanding. The Board of
Directors of the Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any shares of each
particular series of the Preferred Stock, the designation, relative preferences,
participating, optional and other special rights and limitations thereof, if
any, of such series, including, but without limiting the generality of the
foregoing, the following:
(1) the distinctive designation of, and the number of shares of
the Preferred Stock which shall constitute the series, which number
may be increased (except as otherwise fixed by the Board of Directors)
or decreased (but not below the number of shares thereof then
outstanding) from time to time by action of the Board of Directors;
(2) the rate and times at which, and the terms and conditions
upon which, dividends, if any, on shares of the series may be paid,
the extent of preferences or relation, if any, of such dividends to
the dividends payable on any other class or classes of stock of the
Corporation, or on any series of the Preferred Stock or of any other
class or classes of stock of the Corporation, and whether such
dividends shall be cumulative, partially cumulative or non-cumulative;
(3) the right, if any, of the holders of shares of the series to
convert the same into, or exchange the same for, shares of any other
class or classes of stock of the Corporation, and the terms and
conditions of such conversion or exchange;
(4) whether shares of the series shall be subject to redemption
and the redemption price or prices and the time or times at which, and
the terms and conditions upon which, shares of the series may be
redeemed;
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(5) the rights, if any, of the holders of shares of the series
upon voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up of the
Corporation;
(6) the terms of the sinking fund or redemption or purchase
account, if any, to be provided for shares of the series; and
(7) the voting powers, if any, of the holders of shares of the
series which may, without limiting the generality of the foregoing,
include the right, voting as a series by itself or together with other
series of the Preferred Stock or all series of the Preferred Stock as
a class, (1) to vote more or less than one vote per share on any or
all matters voted upon by the shareholders, (2) to elect one or more
directors of the Corporation in the event there shall have been a
default in the payment of dividends on any one or more series of the
Preferred Stock or under such other circumstances and upon such
conditions as the Board of Directors may fix.
(c) The relative preferences, rights and limitations of each series
of Preferred Stock in relation to the preferences, rights and limitations of
each other series of Preferred Stock shall, in each case, be as fixed from time
to time by the Board of Directors in the resolution or resolutions adopted
pursuant to authority granted in this Article FOURTH, and the consent by class
or series vote or otherwise, of the holders of the Preferred Stock of such of
the series of the Preferred Stock as are from time to time outstanding shall not
be required for the issuance by the Board of Directors of any other series of
Preferred Stock whether the preferences and rights of such other series shall be
fixed by the Board of Directors as senior to, or on a parity with, the
preferences and rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in such resolution or
resolutions adopted with respect to any series of Preferred Stock that the
consent of the holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(d) Subject to the provisions of the preceding paragraph (c), shares
of any series of Preferred Stock may be issued from time to time as the Board of
Directors shall determine and on such terms and for such consideration, not less
than the par value thereof, as shall be fixed by the Board of Directors.
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of Article
FOURTH of its Certificate of Incorporation, a series of Preferred Stock, par
value $1.00 per share, of the Corporation be and it hereby is created, and that
the designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
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Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series A Junior Preferred Stock" (the "Series Preferred
Stock") and the number of shares constituting such series shall be 450,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) The holders of shares of Series 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
fifteenth day of March, June, September and December 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 Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $20.00, or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 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 of the 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 Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each of those cases
the multiplier set forth in clause (b) of the preceding sentence shall be
adjusted by multiplying such multiplier 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.
The Corporation shall declare a dividend or distribution on the Series
Preferred Stock as provided in this paragraph (A) 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 $20.00 per share on the Series Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding
shares of Series Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series 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 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 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
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of holders of shares of Series Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 60 days prior to the date fixed for the payment
thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on Common Stock payable in shares of Common Stock; or effect a
subdivision or combination of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to which
holders of shares of Series 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.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series Preferred Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) (i) If at any time dividends on any Series Preferred Stock
shall be in arrears in an amount equal to six 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 Preferred Stock then outstanding shall
have been declared and paid or set apart for payment. During each
default period, the holders of Preferred Stock, voting as a class,
irrespective of series, shall have the right to elect two Directors,
which Directors shall be in addition to the then otherwise authorized
number of Directors.
(ii) During any default period, such voting right of the holders
of Series Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or
at any annual meeting of
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stockholders, provided that such voting right shall not be exercised
unless the holders of 25% in number of shares of 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 Preferred Stock of such voting right. After the holders of the
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 Preferred Stock as herein provided.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any stockholder
or stockholders owning in the aggregate not less than 10% of the total
number of shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of a special meeting of the holders
of Preferred Stock, which meeting shall thereupon be called by the
Chairman of the Board, the President, a Vice-President or the
Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to
vote pursuant to this paragraph (C)(iii) shall be given to each holder
of record of Preferred Stock by mailing a copy of such notice to him
at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than
20 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
stockholder or stockholders owning in the aggregate not less than 10%
of the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this paragraph (C)(iii), 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 stockholders.
(iv) In any default period the holders of Common Stock, and other
classes of stock of the Corporation, if applicable, shall continue to
be entitled to elect the whole number of Directors then otherwise
authorized.
(v) The Directors elected by the holders of Preferred Stock
shall continue in office until the next annual meeting of stockholders
and until their successors shall have been elected by such holders or
until the expiration of the default period. Any vacancy in the Board
of Directors may 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 (C) 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 the foregoing sentence.
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(vi) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may then be authorized by the Board
of Directors.
(D) Except as set forth herein, holders of Series 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.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series Preferred Stock outstanding shall have been
paid in full, the Corporation shall not
(i) 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 Preferred Stock;
(ii) 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 Preferred
Stock, except dividends paid ratably on the Series 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;
(iii) 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 Preferred Stock,
provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the Series Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series Preferred Stock, or any shares of stock ranking on a parity
with the Series 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
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respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. REACQUIRED SHARES. Any shares of Series Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation 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.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
voluntary liquidation, dissolution or winding up of the 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 Preferred Stock unless, prior thereto, the holders of shares of Series
Preferred Stock shall have received $125.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series
Preferred Stock, except distributions made ratably on the Series Preferred Stock
and all other such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the aggregate amount to which holders of shares of Series
Preferred Stock were entitled immediately prior to such event under the proviso
in clause (1) of the preceding sentence 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.
Section 7. CONSOLIDATION, MERGER, ETC. In case the 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 Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
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hereinafter set forth) equal to 100 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 the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of 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 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.
Section 8. NO REDEMPTION. The shares of Series Preferred Stock
shall not be redeemable.
Section 9. AMENDMENT. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of
two-thirds or more of the outstanding shares of Series Preferred Stock, voting
together as a single class.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders of the
Corporation shall not be subject to the payment of corporate debts to any
extent whatever.
SEVENTH: The number of directors which shall constitute the whole
Board of Directors shall be fixed by, or in the manner provided in, the By-
laws; provided that in no event shall the total number of directors be less
than five or more than fifteen. The Board of Directors shall be divided into
three classes as nearly equal in number as may be, with the term of office of
one class expiring each year, and at the annual meeting of stockholders in 1970
directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting; directors of the second class
shall be elected to hold office for a term expiring at the second succeeding
annual meeting; and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting. When the
number of directors is changed, any newly created directorships or any decrease
in directorships shall be so apportioned among the classes as to make all
classes as nearly equal in number as possible. When the number of directors is
increased by the Board of Directors and any newly created directorships are
filled by the Board of Directors, there shall be no classification of the
additional directors until the next annual meeting of stockholders.
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Subject to the foregoing, at each annual meeting of stockholders the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting.
EIGHTH: The following additional provisions are inserted for the
regulation of the business and for the conduct of the affairs of the Corporation
and its directors and stockholders:
(a) Subject to the provisions of Article SEVENTH, the Board of
Directors shall have power to make, alter, amend or repeal the By-laws of the
Corporation without the assent or vote of the stockholders.
(b) The Board of Directors, in addition to the powers and authority
expressly conferred upon it hereinbefore and by statute and by the By-laws, is
hereby empowered to exercise all such powers as may be exercised by the
Corporation, subject nevertheless to the provisions of the Statutes of the State
of Delaware, of this Certificate of Incorporation, and to any regulations that
may from time to time be made by the stockholders, provided that no regulations
so made shall invalidate any provisions of this Certificate of Incorporation or
any power or act of the Board of Directors which would have continued valid if
such regulation had not been made.
NINTH: (a) Except as set forth in part (b) of this Article NINTH,
the affirmative vote or consent of the holders of shares of all classes of stock
of the Corporation possessing four-fifths of the voting rights in elections of
directors, considered for the purposes of this Article NINTH as one class, shall
be required (i) for the adoption of any agreement for the merger or
consolidation of the Corporation with or into any Other Corporation (as
hereinafter defined), or (ii) to authorize any sale, lease, exchange, mortgage,
pledge or other disposition of all, or substantially all, or any Substantial
Part (as hereinafter defined) of the assets of the Corporation or any Subsidiary
(as hereinafter defined) to any Other Corporation, or (iii) to authorize the
issuance or transfer by the Corporation of any Substantial Amount (as
hereinafter defined) of securities of the Corporation in exchange for the
securities or assets of any Other Corporation. Such affirmative vote or consent
shall be in addition to the vote or consent of the holders of the stock of the
Corporation otherwise required by law, this Certificate of Incorporation or any
agreement or contract to which the Corporation is a party.
(b) The provisions of part (a) of this Article NINTH shall not be
applicable to any transaction described therein if such transaction is approved
by resolution of the Board of Directors of the Corporation, provided that a
majority of the members of the Board of Directors voting for the approval of
such transaction were duly elected and acting members of the Board of Directors
prior to the time any such Other Corporation may have become a Beneficial Owner
(as hereinafter defined) of shares of stock of the Corporation possessing more
than 10% of the voting rights in elections of directors.
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(c) For purposes of part (b) of this Article NINTH, the Board of
Directors shall have the power and duty to determine for the purposes of this
Article NINTH, on the basis of information known to such Board, if and when any
Other Corporation is the Beneficial Owner of more than 10% of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors.
Any such determination shall be conclusive and binding for all purposes of this
Article NINTH.
(d) As used in this Article NINTH, the following terms shall have the
meanings as set forth below:
"Other Corporation" means any person, firm, corporation or other
entity, other than a Subsidiary of the Corporation.
"Substantial Part" means any assets having a then fair market
value, in the aggregate, of more than $5,000,000.
"Subsidiary" means any corporation in which the Corporation owns,
directly or indirectly, more than 50% of the voting securities.
"Substantial Amount" means any securities of the Corporation
having a then fair market value of more than $5,000,000.
"Beneficial Owner" of stock means a person, or an "affiliate" or
"associate" of such person (as such terms are defined in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of
1934 as in effect on March 1, 1970), who directly or indirectly
controls the voting of such stock, or who has any option, warrants,
conversion or other rights to acquire such stock.
TENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation; provided that no
amendment to this Certificate of Incorporation shall amend, alter, change or
repeal any of the provisions of Article SEVENTH or Article NINTH or this Article
TENTH, unless the amendment effecting such amendment, alteration, change or
repeal shall receive the affirmative vote or consent of the holders of shares of
all classes of stock of this Corporation possessing four-fifths of the voting
rights in elections of directors, considered for this purpose as one class.
ELEVENTH: (a) The provisions of this Article ELEVENTH shall apply
independently of any other provision of this Restated Certificate of
Incorporation if any Other Corporation (as hereinafter defined) seeks to
accomplish a Business Combination (as hereinafter defined) following the date
the Acquiring Entity (as hereinafter defined) becomes an Acquiring Entity.
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(b) (1) As used in Article ELEVENTH, the following terms shall have
the meanings set forth below:
"Acquiring Entity" means any Other Corporation which is
the Beneficial Owner of more than 10% of the outstanding
shares of stock of the Corporation entitled to vote in
elections of directors.
"Beneficial Owner" of stock means a person or an
"affiliate" or "associate" of such person (as such terms are
defined in Rule 12b-2 of the General Rules and Regulations
["Regulations"] under the Securities Exchange Act of 1934 as
in effect on January 1, 1984) who is a "beneficial owner" of
stock, as that term is defined under Rule 13d-3 of the
Regulations as in effect on January 1, 1984, together with
successors or assigns of that person.
"Business Combination" means any merger or
consolidation of the Corporation with or into any Acquiring
Entity (or any affiliate of any Acquiring Entity), any sale,
lease, exchange, mortgage, pledge or other disposition of
all, or any Substantial Part (that is, assets having a then
fair market value in the aggregate of more than $5,000,000)
of the assets of the Corporation or any subsidiary of the
Corporation, to any Acquiring Entity (or any affiliate of
any Acquiring Entity), or any issuance or transfer by the
Corporation of any Substantial Amount (that is, any
securities of the Corporation having a then fair market
value of more than $5,000,000) of securities of the
Corporation in exchange for the securities or assets of any
Acquiring Entity (or any affiliate of any Acquiring Entity).
"Continuing Director" means a director duly elected to
the Board of Directors prior to the time the Acquiring
Entity becomes an Acquiring Entity, or a person recommended
to succeed a Continuing Director by a majority of the
Continuing Directors.
"Other Corporation" means any person, firm, corporation
or other entity, other than a subsidiary of the Corporation.
(2) For purposes of this Article ELEVENTH, the Board of Directors
shall have the power and duty to determine, on the basis of information known to
the Board, if and when any Other Corporation is or has become an Acquiring
Entity. Any such determination shall be conclusive and binding for all purposes
of this Article ELEVENTH.
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(c) The affirmative vote or consent of holders of 67% of the shares
of all classes of stock of the Corporation entitled to vote for directors,
considered for the purpose of this Article ELEVENTH as one class, other than
voting stock of which the Acquiring Entity is the Beneficial Owner, shall be
required for approval of any Business Combination with any Acquiring Entity (or
any affiliate of any Acquiring Entity), unless all of the following conditions
are fulfilled:
(1) The cash or fair market value of other consideration to be
received per share by common stockholders of the Corporation in the
Business Combination will not, at the time the Business Combination is
effected, be less than the greater of:
(A) the highest per share price, including brokerage
commissions and/or soliciting dealers' fees (with
appropriate adjustments for recapitalizations and for stock
splits, stock dividends and like distributions), paid by the
Acquiring Entity at any time in acquiring any of its
holdings of the Corporation's Common Stock; or
(B) the highest per share price quoted in any market
in which the Corporation's Common Stock is traded during the
12 months immediately prior to the public announcement of
the Business Combination.
(d) In connection with a proposed Business Combination, the
Continuing Directors may retain special outside legal counsel, an investment
banking firm, or such other experts as they, in their discretion, may deem
necessary or appropriate to assist them in their evaluation of the Business
Combination. In the event that an investment banking firm is retained by the
Continuing Directors to give an opinion as to the value of the other
consideration or as to the fairness (or lack of fairness) of the terms of any
Business Combination from the point of view of the remaining public stockholders
of the Corporation or otherwise, any proxy statement required to be mailed to
the public stockholders of the Corporation shall contain in a prominent place at
the front of the proxy statement any recommendation of the Continuing Directors
as to the advisability (or inadvisability) of the Business Combination. If the
Continuing Directors so determine, the opinion of the investment banking firm
shall also be included in the proxy statement. All fees and expenses of outside
legal counsel, any investment banking firm or other expert selected by the
Continuing Directors shall be paid by the Corporation.
(e) In addition to any other provision of this Restated Certificate
of Incorporation or By-laws, there shall be required to amend, alter, change or
repeal, directly or indirectly, this Article ELEVENTH the affirmative vote or
consent of 80% of the shares of all classes of stock of the Corporation entitled
to vote for directors, considered for the purpose of this Article ELEVENTH as
one class.
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(f) Nothing contained in this Article ELEVENTH shall be construed to
relieve any Acquiring Entity from any fiduciary obligation imposed by law. The
conditions and voting requirements of this Article ELEVENTH shall be in addition
to the conditions and voting requirements imposed by law or other provisions of
this Restated Certificate of Incorporation, including, without limitation, the
conditions and voting requirements imposed by Article NINTH.
TWELFTH: A director of the Corporation shall not be personally liable
to the Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware or (iv) for any transaction from which the director
derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended
after approval of this Article by the shareholders to authorize the further
elimination or limitation of the liability of directors, then the liability of
directors shall be eliminated or limited to the full extent authorized by the
General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of this Article shall not adversely affect
any right or protection of a director of the Corporation existing at the time of
such repeal or modification.
5. The capital of said Corporation will not be reduced under or by
reason of any amendment in this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, said Snap-on Incorporated has caused its corporate
seal to be hereunto affixed and this certificate to be signed by its SR. VICE
PRESIDENT and attested to by its Secretary, this 7TH day of MARCH , 1995.
SNAP-ON INCORPORATED
By: /s/ Michael F. Montemurro
---------------------------------------
Michael F. Montemurro
Sr. Vice President - Financial Services
ATTEST: and Administration
/s/ Susan F. Marrinan
----------------------------------
Susan F. Marrinan, Vice President,
Secretary and General Counsel
(CORPORATE SEAL)
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