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Exhibit 3.1
THE TIMBERLAND COMPANY
The Timberland Company, a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name of this corporation is The Timberland Company. The date of
filing its original Certificate of Incorporation with the Secretary of
State was December 20, 1978.
2. Pursuant to Sections 245 and 242 of the General Corporation Law of the
State of Delaware (the "General Corporation Law"), the Restated
Certificate of Incorporation (i) was approved and proposed for
submission to the stockholders of this corporation by a written
consent of the sole director of this corporation dated May 13, 1987,
in accordance with Section 141 of the General Corporation Law, (ii)
was adopted by unanimous written consents dated May 13, 1987 of all
holders of shares of the outstanding capital stock of this
corporation; and that, since each stockholder executed such a written
consent, the notice of such action required by said Section 228 was
not required to be given.
3. This Restated Certificate of Incorporation both restates and
integrates the Certificate of Incorporation of this corporation as
heretofore amended and supplemented and further amends such
Certificate of Incorporation.
4. The text of the Restated Certificate of Incorporation is herein set
forth in full:
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THE TIMBERLAND COMPANY
RESTATED CERTIFICATE OF INCORPORATION
1. NAME: The name of the corporation is The Timberland Company.
2. REGISTERED OFFICE: The registered office of the corporation in the State of
Delaware is located at 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the registered agent of the corporation
at such address is The Corporation Trust Company.
3. PURPOSE. The purpose of the corporation is to engage in any manufacturing,
mercantile, selling, management, service or other business or any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, and to have as additional
purposes all powers granted to corporations by the laws of said State,
provided that no such purpose shall include any activity inconsistent with
the General Corporation Law of said State.
4. CAPITAL STOCK, ETC. A statement of the designations, numbers, relative
rights, preferences and limitations of the capital stock of the corporation
and of certain other matters is as follows:
4.1 DESIGNATION AND NUMBERS. The aggregate number of shares which the
corporation shall have the authority to issue is 47,000,000. The
number of shares of each class and the par value of each share of each
class are as follows:
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NAME OF CLASS NUMBER OF SHARES PAR VALUE
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Preferred Class 2,000,000 $.01
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Class A Common Stock 30,000,000 $.01
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Class B Common Stock 15,000,000 $.01
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4.2 PREFERRED STOCK. The shares of Preferred Stock may be issued from time
to time in one or more series. As contemplated, and to the extent
permitted, by Section 151(a) of the General Corporation Law of the
State of Delaware and to the extent not inconsistent with the other
provisions of this Restated Certificate of Incorporation, the Board of
Directors is authorized to establish and designate the different
series, and to fix and determine the variations in the relative
numbers, rights, preferences and limitations as between and among the
different series, in the resolution or resolutions providing for the
issue of such stock adopted by the Board of Directors pursuant to this
Section 4.2.
4.3 CLASS A COMMON STOCK AND CLASS B COMMON STOCK. Except as otherwise
provided in this Section 4.3, the Class A Common Stock and Class B
Common Stock shall have the same rights and privileges and shall rank
equally, share ratably and be identical in all respects to all
matters.
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4.3.1 DIVIDENDS AND OTHER DISTRIBUTIONS. Subject to the limitations,
if any, prescribed in the provisions of any series of Preferred
Stockholders of shares of Class A Common Stock and holders of
shares of Class B Common Stock shall be entitled to receive,
when and as declared by the Board of Directors out of the assets
or funds of the corporation which are by law available
therefore, dividends payable in cash or in property (other than
shares of Class A Common Stock or shares of Class B Common
Stock) or in any combination thereof. Dividends in cash and
property (other than dividends payable in Class A Common Stock
or Class B Common Stock) with respect to the Class A Common
Stock and the Class B Common Stock shall be paid at the same
rate and at the same time on both such classes, and not on
either one of them without the other. Holders of shares of Class
A Common Stock and holders of shares of Class B Common Stock
shall be entitled to receive, when and as declared by the Board
of Directors out of the assets or funds of the Corporation which
are by law available therefore, dividends payable in shares of
Class A Common Stock and shares of Class B Common Stock;
PROVIDED, HOWEVER, that any such dividend payable in respect of
the Class A Common Stock shall be payable only in shares of
Class A Common Stock and any such dividend payable with respect
to shares of Class B Common Stock shall be payable only in
shares of Class B Common Stock; and PROVIDED, FURTHER, that no
such dividend shall be paid on either class unless there shall
be declared and paid at the same time a dividend at the same
rate on the other class.
4.3.2 VOTING RIGHTS AND POWERS. Except as otherwise provided in this
Section 4.3.2, with respect to all matters upon which
stockholders are entitled to vote or to which stockholders are
entitled to give consent, the holders of the outstanding shares
of the Class A Common Stock and the holders of the outstanding
shares of the Class B Common Stock shall, except as otherwise
required by law, vote together as a single class, and every
holder of the outstanding shares of the Class A Common Stock
shall be entitled to cast thereon one (1) vote in person or by
proxy for each share of the Class A Common Stock standing in his
name, and every holder of outstanding shares of the Class B
Common Stock shall be entitled to cast thereon ten (10) votes in
person or by proxy for each share of the Class B Common Stock
standing in his name. With respect to the election of the
directors at each annual meeting, or special meeting in lieu of
the annual meeting, of the stockholders of the corporation, the
holders of the Class A Common Stock shall have the right, voting
separately as a class, to elect a number of the directors of the
corporation equal to twenty-five percent (25%) of the total
number of directors to be elected at such meeting (and, if such
number is not a whole number, rounded upwards to the nearest
whole number); PROVIDED, HOWEVER, that if at any time the
aggregate number of issued and outstanding shares of Class B
Common Stock is less than twelve and one-half percent (12.5%) of
the aggregate number of issued and outstanding shares of Class A
Common Stock and Class B Common Stock, then the holders of
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the Class A Common Stock and Class B Common Stock shall vote
together as a class for the election of directors, with each
holder of Class A Common Stock and each holder of Class B Common
Stock entitled to cast one (1) vote in person or by proxy for
each share of such Class A Common Stock for each share of such
Class B Common Stock standing in his name. With respect to any
proposed amendment to this Restated Certificate of Incorporation
which would change the powers, preferences, relative voting
power or special rights of the shares of the Class A Common
Stock or the Class B Common Stock so as to affect either class
adversely relative to the other, the approval of a majority of
the votes entitled to be cast by the holders of the class
adversely affected by the proposed amendment, voting separately
as a class, shall be obtained in addition to the approval of a
majority of the votes entitled to be cast by the holders of the
Class A Common Stock and the Class B Common Stock voting
together as a single class as hereinbefore provided.
4.3.3 CONVERSION OF CLASS B COMMON STOCK INTO CLASS A COMMON STOCK.
(a) Each share of Class B Common Stock may at any time at the
option of the holder be converted into one (1) fully paid
and nonassessable share of Class A Common Stock. Such
right shall be exercised by the surrender to the corporation
of the certificate representing such share of Class B Common
Stock to be converted at the principal executive offices of
the corporation, or if an agent for the registration of
transfer of shares of Class A Common Stock is then duly
appointed and acting (said agent being hereinafter referred
to as the "Transfer Agent"), then at the office of the
Transfer Agent, accompanied by a written notice of the
election by the holder thereof to convert and (if so
required by the corporation or Transfer Agent) by
instruments of transfer, in form satisfactory to the
corporation and the Transfer Agent, duly executed by such
holder or his duly authorized attorney, and by transfer tax
stamps or funds therefore, as required pursuant to paragraph
(e) below.
(b) As promptly as practicable after any such exercise of a
holder's election to convert, the corporation will deliver,
or cause to be delivered at the office of the Transfer
Agent, to or upon the written order of the holder of such
certificate, a certificate or certificates representing the
number of full shares of Class A Common Stock issuable upon
such conversion, issued in such name or names as such holder
may direct. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date
of the surrender of the certificate representing shares of
Class B Common Stock, and all rights of the holders of such
shares as such holder shall cease at such time and the
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person in whose name a certificate representing the shares
of Class A Common Stock are to be issued shall be treated
for all purposes as having become the record holder of
shares of Class A Common Stock at such time.
(c) No adjustments in respect of dividends shall be made upon
the conversion of any share of Class B Common Stock, but
exercise of the election to convert shall not deprive a
holder of Class B Common Stock of the right to receive any
dividend or distribution in respect of such stock payable to
holders of record of Class B Common Stock prior to the
effective date of conversion.
(d) The Corporation covenants that it will at all times reserve
and keep available from authorized but unissued shares or
from treasury shares or from any combination thereof, solely
for the purpose of issuance upon conversion of the
outstanding shares of Class B Common Stock, such number of
shares of Class A Common Stock as shall be issuable upon the
conversion of all such outstanding shares.
(e) The issuance of a certificate for shares of Class A Common
Stock upon conversion of shares of Class B Common Stock
shall be made without charge for any stamp or other similar
tax in respect of such issuance except that if any such
certificate is to be issued in a name other than that of the
holder of the shares of Class B Common Stock converted, the
person requesting the issuance thereof shall pay to the
corporation the amount of any tax which may be payable in
respect of any transfer involved in such issuance or shall
establish to the satisfaction of the corporation that such
tax has been paid.
(f) Shares of Class B Common Stock which have been issued and
converted into shares of Class A Common Stock will have the
status of authorized and unissued shares and may be reissued
as shares of Class B Common Stock by the Board of Directors.
4.3.4 LIMITATIONS ON TRANSFER OF CLASS B COMMON STOCK.
(a) No person holding shares of Class B Common Stock (a "Class B
Holder") may transfer such shares of Class B Common Stock,
whether by sale, assignment, gift, devise, bequest,
appointment or otherwise, except to a "Permitted Transferee"
of such Class B Holder. The term "Permitted Transferee"
shall mean:
(i) the spouse of such Class B Holder;
(ii) a parent or lineal descendant of such Class B Holder,
whether by blood or adoption;
(iii) the brother or sister of such Class B Holder;
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(iv) the estate of such Holder or a trust for the exclusive
benefit of such Class B Holder or any one or more of
the persons referred to in clauses (1) through (iii)
above;
(v) the corporation; or
(vi) any other transferee designated by the Board of
Directors as a Permitted Transferee for purposes of the
specific transfer involved.
(b) Any purported transfer of shares of Class B Common Stock
other than to a Permitted Transferee shall constitute the
irrevocable election by the holder to convert such shares
into Class A Common Stock and to transfer to the transferee
such shares of Class A Common Stock; and the sole right of
the transferee upon presentation of certificates
representing such Class B Common Stock for registration of
transfer shall be to receive certificates representing the
requisite number of shares of Class A Common Stock upon
delivery to the corporation or the Transfer Agent of the
documentation and payment (if any) called for by paragraph
(a) of Section 4.3.3 hereof. Until such delivery to the
corporation or the Transfer Agent, neither the shares of
Class B Common Stock represented by such certificates
surrendered for registration of transfer nor the shares of
Class A Common Stock into which such shares are to be
converted shall carry any voting right, and dividends or
other distributions with respect thereto shall be withheld
until such delivery has been completed.
(c) Each certificate representing shares of Class B Common Stock
shall be registered in the actual name of the owner thereof
and not in "street name" or in any nominee name.
(d) Notwithstanding anything to the contrary set forth herein,
any holder of Class B Common Stock may pledge such holder's
shares of Class B Common Stock to a pledgee pursuant to a
bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee; PROVIDED, HOWEVER, that
such shares shall not be transferred to, or registered in
the name of, the pledgee and shall remain subject to the
provisions of this Section 4.3.4. In the event of
foreclosure or other similar action by the pledgee, such
pledged shares of Class B Common Stock may not be
transferred to the pledgee and may only be converted into
shares of Class A Common Stock.
(e) The Corporation shall note on the certificates representing
the shares of Class B Common Stock the restrictions on
transfer and registration of transfer imposed by this
Section 4.3.4.
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4.3.5 LIQUIDATION, DISSOLUTION, MERGER, CONSOLIDATION, ETC. In the
event the corporation shall be liquidated, dissolved or wound
up, whether voluntarily or involuntarily, after there shall have
been paid to or set aside for the full preferential amounts to
which the holders of any class or series having a preference
over the Class A Common Stock and Class B Common Stock are
entitled, the holders of the Class B Common Stock and the
holders of Class A Common Stock shall be entitled to share
ratably as a single class, share and share alike, in the
remaining net assets of the corporation. A merger or
consolidation of the corporation with or into any other
corporation or a sale or conveyance of all or any part of the
assets of the corporation (which shall not in fact result in the
liquidation of the corporation and the distribution of assets to
stockholders) shall not be deemed to be a voluntary or
involuntary liquidation or dissolution or winding up of the
corporation within the meaning of this Section 4.3.5.
5. BY-LAWS. Subject to the limitations and exceptions, if any, contained
therein, by-laws may be adopted, amended or repealed by the Board of
Directors.
6. SPECIAL MEETINGS OF STOCKHOLDERS. A special meeting of the stockholders
shall be called by the secretary, or in the case of the death, absence,
incapacity or refusal of the secretary, by an assistant secretary or some
other officer, only upon application of a majority of the directors.
7. WRITTEN CONSENTS OF STOCKHOLDERS. Action may be taken in lieu of meetings
by written consent of the holders of outstanding shares of capital stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.
8. INDEMNIFICATION OF OFFICERS AND DIRECTORS. The Corporation shall indemnify
each person who is or was or has agreed to be a director or officer of the
corporation against expenses (including attorney's fees and expenses),
judgments, fines, penalties and amounts paid in settlement in connection
with defending, investigating, preparing to defend or being or preparing to
be a witness in any threatened, pending or completed action, suit,
proceeding or claim, whether civil, criminal, administrative or
investigative, to the maximum extent permitted from time to time under the
law of the State of Delaware. Such indemnification shall not be exclusive
of other indemnification rights arising under any by-law, contract,
agreement, vote of directors or stockholders or otherwise and shall inure
to the benefit of the heirs and legal representatives of such person.
9. LIABILITY OF DIRECTORS. Except to the extent that the General Corporation
Law of the State of Delaware prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty, no director of the
corporation shall be liable for any breach of fiduciary duty. No amendment
to or repeal of this Article 9 shall apply to or have any effect on the
liability or alleged liability of any director of the corporation for or
with respect to any acts or omissions of such director occurring prior to
such amendment.
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10. CORPORATE BOOKS. The books of the Corporation may (subject to any
statutory requirements) be kept outside the State of Delaware in any
such place as may be designated by the Board of Directors or in the
by-laws of the corporation.
IN WITNESS WHEREOF, The Timberland Company has caused this certificate to
be signed by Sidney W. Swartz, its President and John E. Beard, its Secretary,
and its corporate seal affixed hereto, this 13th day of May, 1987. This
certificate is to be filed with the Secretary of State of the State of Delaware,
and recorded with the Recorder of Deeds of New Castle County, Delaware, pursuant
to Sections 103 and 245 of the General Corporation Law of the State of Delaware.
THE TIMBERLAND COMPANY
By
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Sidney W. Swartz, President
Attest:
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John E. Beard, Secretary