Date
of Report (Date of Earliest Event Reported):
|
March
12, 2010
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Connecticut
|
1-5244
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06-0548860
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||
(State
or other jurisdiction
of
incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
||
|
||||
1000
Stanley Drive, New Britain, Connecticut
|
06053
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|||
(Address
of principal executive offices)
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(Zip
Code)
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|||
Registrant’s
telephone number, including area code:
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(860)
225-5111
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●
|
maintenance
of an EBITDA interest covenant ratio which provides for the exclusion
of certain restructuring charges and charges associated with the Merger as
well as certain adjustments to reported interest;
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||
●
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a
limitation on creating liens on certain property of the Registrant and its
subsidiaries;
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||
●
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a
restriction on mergers, consolidations and sales of substantially all of
the assets of the Registrant or its subsidiaries;
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||
●
|
a
restriction on entering into certain sale-leaseback
transactions.
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●
|
The
Registrant’s 6.15% Notes due 2013 (the “Stanley 2013
Notes”);
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||
●
|
The
Registrant’s 4.9% Notes due 2012 (the “Stanley 2012
Notes”);
|
||
●
|
The
Registrant’s convertible notes due 2012 (the “Stanley Convertible Notes”);
and
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||
●
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The
Registrant’s 5.0% Notes due 2010 (the “Stanley 2010 Notes” and, together
with the Stanley 2013 Notes, the Stanley 2012 Notes and the Stanley
Convertible Notes, the “Stanley
Notes”).
|
● |
$300,000,000
aggregate principal amount of Black & Decker’s 5.75% Notes due 2016
(the “Black & Decker 2016 Notes”);
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||
● |
$350,000,000
aggregate principal amount of Black & Decker’s 8.95% Notes due 2014
(the “Black & Decker 2014 8.95% Notes”);
|
||
● |
$300,000,000
aggregate principal amount of Black & Decker’s 4.75% Notes due 2014
(the “Black & Decker 2014 4.75% Notes”);
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||
● |
$400,000,000
aggregate principal amount of Black & Decker’s 7.125% Notes due 2011
(the “Black & Decker 2011 Notes”); and
|
||
● |
$150,000,000
aggregate principal amount of 7.05% Notes due 2028 issued by Black &
Decker Holdings, LLC (formerly Black & Decker Holdings Inc.), an
indirect wholly-owned subsidiary of Black & Decker (the “Black &
Decker 144A Notes” and, together with the Black & Decker 2016 Notes,
the Black & Decker 2014 8.95% Notes, the Black & Decker 2014 4.75%
Notes and the Black & Decker 2011 Notes, the “Black &
Decker Notes”).
|
Name
|
Benjamin
H. Griswold, IV
|
George
W. Buckley
|
M. Anthony Burns |
Manuel
A. Fernandez
|
Nolan D. Archibald |
Robert L. Ryan |
Name
|
Position
|
John
F. Lundgren
|
President
& Chief Executive Officer
|
Donald
Allan, Jr.
|
Senior
Vice President & Chief Financial Officer
|
Jeffrey
D. Ansell
|
Senior
Vice President & Group Executive, Construction and
DIY
|
Bruce
H. Beatt
|
Senior
Vice President, General Counsel and Secretary
|
D.
Brett Bontrager
|
Senior
Vice President & Group Executive, Convergent Security
Solutions
|
Justin
C. Boswell
|
Senior
Vice President & Group Executive, Mechanical
Security
|
Hubert
W. Davis, Jr.
|
Senior
Vice President & Chief Information Officers/SFS
|
Massimo
Grassi
|
President,
Industrial & Auto Repair
|
Mark
J. Mathieu
|
Senior
Vice President, Human Resources
|
(a)
|
Financial Statements of Business
Acquired
|
(b)
|
Pro Forma Financial
Information
|
(d)
|
Exhibits
|
Stanley
Black & Decker, Inc.
|
|||
March 12,
2010
|
By:
|
/s/ Bruce H. Beatt | |
Name: Bruce H. Beatt | |||
Title: Senior Vice President, General Counsel and Secretary | |||
Description
|
|
|
2.1
|
Agreement
and Plan of Merger dated as of November 2, 2009, among The Stanley
Works, The Black & Decker Corporation and Blue Jay
Acquisition Corp., a wholly owned subsidiary of Stanley (incorporated by
reference to Exhibit 2.1 of our Current Report on Form 8-K filed on
November 3, 2009).
|
|
3.1
|
Certificate
of Amendment to the Restated Certificate of Incorporation of Stanley Black
& Decker, Inc. dated as of March 12, 2010.
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3.2
|
Amended
and Restated Bylaws of Stanley Black & Decker, Inc. dated as of March
12, 2010.
|
|
4.1
|
Second
Supplemental Indenture dated as of March 12, 2010 to the Indenture dated
as of November 1, 2002 between The Stanley Works and The Bank of New York
Mellon Trust Company, as successor trustee to JPMorgan Chase Bank,
N.A.
|
|
4.2
|
Third
Supplemental Indenture dated as of March 12, 2010, to the Indenture dated
as of November 16, 2006 between The Black & Decker Corporation, and
The Bank of New York, as trustee.
|
|
4.3
|
First
Supplemental Indenture dated as of March 12, 2010, to the Indenture dated
as of October 18, 2004 between The Black & Decker Corporation and the
Bank of New York as trustee.
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|
4.4
|
First
Supplemental Indenture dated as of March 12, 2010, to the Indenture dated
as of June 5, 2001, between The Black & Decker Corporation and
the Bank of New York, as trustee.
|
|
4.5
|
First
Supplemental Indenture dated as of March 12, 2010, to the Indenture dated
as of June 26, 1998, by and among Black & Decker Holdings, Inc., as
issuer, The Black & Decker Corporation, as guarantor and The First
National Bank of Chicago, as trustee.
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|
4.6
|
Indenture,
dated as of November 16, 2006, between The Black & Decker Corporation
and The Bank of New York Mellon (formerly known as The Bank of New York),
as trustee.
|
|
4.6(a) |
First
Supplemental Indenture dated as of November 16, 2006, to the Indenture
dated as of November 16, 2006 between The Black & Decker Corporation
and The Bank of New York Mellon (formerly known as The Bank of New York),
as trustee.
|
|
4.6(b) |
Second
Supplemental Indenture dated as of April 3, 2009, to the Indenture dated
as of November 16, 2006 between The Black & Decker Corporation and The
Bank of New York Mellon (formerly known as The Bank of New York), as
Trustee.
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|
4.7
|
Indenture,
dated as of October 18, 2004, between The Black & Decker Corporation
and The Bank of New York Mellon (formerly known as The Bank of New York),
as trustee.
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|
4.8
|
Indenture
dated as of June 5, 2001, by The Black & Decker Corporation with the
Bank of New York, as trustee.
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4.9
|
Indenture
dated as of June 26, 1998, by and among Black & Decker Holdings, Inc.,
as issuer, The Black & Decker Corporation, as guarantor and The First
National Bank of Chicago, as trustee.
|
|
10.1
|
Executive
Chairman Agreement, dated as of November 2, 2009, among The Stanley Works
and Nolan D. Archibald (incorporated by reference to Exhibit 10.3 of our
Current Report on Form 8-K filed on November 3, 2009).
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|
10.2
|
Second
Amended and Restated Employment Agreement, dated as of November 2, 2009,
among The Stanley Works and John F. Lundgren (incorporated by reference to
Exhibit 10.1 of our Current Report on Form 8-K filed on November 3,
2009).
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|
10.3
|
Employment
Agreement, dated as of November 2, 2009, among The Stanley Works and James
M. Loree (incorporated by reference to Exhibit 10.2 of our Current Report
on Form 8-K filed on November 3, 2009).
|
10.4
|
364-Day
Credit Agreement dated as of March 12, 2010, among Stanley Black &
Decker, Inc., The Black & Decker Corporation, as Subsidiary Guarantor,
and each of the initial lenders named therein, Citibank, N.A., as
Administrative Agent, Citigroup Global Markets Inc. and Banc of America
Securities LLC, as Lead Arrangers and Book runners, and Bank of America,
N.A., as Syndication Agent.
|
|
10.5
|
Amendment
No. 2 to the Amended and Restated Credit Agreement among Stanley Black
& Decker (formerly known as The Stanley Works), the Lenders party
thereto and Citibank, N.A. as Agent for the Lenders.
|
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10.6
|
The
Black & Decker 1996 Stock Option Plan, as amended and restated (filed
herewith).
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|
10.7
|
The
Black & Decker 2003 Stock Option Plan, as amended and restated (filed
herewith).
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10.8
|
The
Stanley Works Restricted Stock Unit Plan for Non-Employee Directors
amended and restated as of December 11, 2007 (incorporated by reference to
Exhibit 10(xx) to Annual Report on Form 10-K for the year ended December
29, 2007).
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|
23.1
|
Consent
of Ernst & Young LLP independent auditor to The Black & Decker
Corporation.
|
|
99.1
|
Amended
and Restated Stanley Black & Decker, Inc. Corporate Governance
Guidelines dated as of March 12, 2010.
|
|
99.2
|
Press
release dated March 12, 2010, announcing the completion of the
Merger.
|
|
99.3
|
The
historical audited consolidated financial statements of The Black &
Decker Corporation and its subsidiaries as of the fiscal year ended
December 31, 2009.
|
THE
STANLEY WORKS
|
||
By:
|
/s/ Bruce H. Beatt | |
Name:
|
Bruce
H. Beatt
|
|
Title:
|
Vice
President, General Counsel and
Secretary
|
1.
|
Annual
Meeting
. The Annual Meeting of the shareholders shall be
held at such time in each year and at such place within or without the
State of Connecticut as the Board of Directors may determine. Notice
thereof shall be mailed to each shareholder to his or her last known post
office address not less than ten days nor more than sixty days before such
Meeting.
|
2.
|
Special
Meetings
. Special Meetings of the shareholders shall be
called by the Chairman, or the Chief Executive Officer or Secretary, or by
the Chairman, or the Chief Executive Officer or Secretary upon the written
request of the holders of not less than 35% of the voting power of all
shares entitled to vote on any issue proposed to be considered at such
Meeting by mailing a notice thereof to each shareholder to his or her last
known post office address not less than twenty-five days nor more than
fifty days before such Meeting.
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3.
|
Quorum
. At
any Meeting of shareholders the holders of not less than a majority of the
shares outstanding and entitled to vote present in person or by proxy
shall constitute a quorum. The Directors may establish a record date for
voting or other purposes in accordance with
law.
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4.
|
Business
to be Conducted at Annual Meeting
. No business may be
transacted at an Annual Meeting of shareholders (including any adjournment
thereof), other than business that is either (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
Board of Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the Annual Meeting by or at the
direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the Annual Meeting by
any shareholder (i) who is a shareholder of record on the date of the
giving of the notice provided for in this Section 4 and on the record date
for the determination of shareholders entitled to vote at such Annual
Meeting and (ii) who complies with the notice procedures set forth in this
Section 4.
|
|
In
addition to any other applicable requirements, for business to be properly
brought before an Annual Meeting by a shareholder, such shareholder must
have given timely notice thereof in proper written form to the
Secretary.
|
|
To
be timely, a shareholder’s notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Corporation
not less than ninety (90) days nor more than one hundred twenty (120) days
prior to the anniversary of the date on which the proxy statement was
first mailed relating to the immediately preceding Annual Meeting of
shareholders;
provided
,
however
,
that in the
event that the Annual Meeting is called for a date that is not within
thirty (30) days before or after such anniversary date, in order for a
shareholder’s notice to be timely it must be so received not later than
the close of business on the tenth (10th) day following the day on which
the notice of the date of such Annual Meeting was mailed or public
disclosure of the date of such Annual Meeting was made, whichever first
occurs. In no event shall the public announcement of an adjournment of an
Annual Meeting commence a new time period for the giving of a
shareholder’s notice as described
above.
|
|
To
be in proper written form, a shareholder’s notice to the Secretary must
set forth as to each matter such shareholder proposes to bring before the
Annual Meeting (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such
business at the Annual Meeting, including the complete text of any
resolutions to be presented at the Annual Meeting with respect to such
business, and the reasons for conducting such business at the Annual
Meeting, (ii) the name and record address of the shareholder of record
proposing such business and any other person on whose behalf the proposal
is being made, (iii) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of record by such
shareholder or such other person, (iv) a description of all arrangements
or understandings between such shareholder and any such other person or
persons in connection with the proposal of such business by such
shareholder, (v) a description of any material interest of such
shareholder or such other person in such business and (vi) a
representation that such shareholder intends to appear in person or by
proxy at the Annual Meeting to bring such business before the
meeting.
|
|
No
business shall be conducted at the Annual Meeting of shareholders except
business brought before the Annual Meeting in accordance with the
procedures set forth in this Section 4;
provided
,
however
,
that, once
business has been properly brought before the Annual Meeting in accordance
with such procedures, nothing in this Section 4 shall be deemed to
preclude discussion by any shareholder of any such business. If the
Chairman of an Annual Meeting determines that business was not properly
brought before the Annual Meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business
was not properly brought before the meeting and such business shall not be
transacted.
|
1.
|
Eligibility
to Make Nominations
. Nominations of candidates for
election as directors of the Corporation at any meeting of shareholders
called for election of directors may be made by the Board of Directors (an
“
Election
Meeting
”
)
or at any
annual meeting of shareholders by any shareholder entitled to vote at such
annual meeting.
|
2.
|
Procedure
for Nominations by the Board of Directors
. Nominations
made by the Board of Directors shall be made at a meeting of the Board of
Directors, or by written consent of directors in lieu of a meeting, not
less than 30 days prior to the date of the Election Meeting, and such
nominations shall be reflected in the minute books for the Corporation as
of the date made. At the request of the Secretary of the Corporation each
proposed nominee shall provide the Corporation with such information
concerning himself or herself as is required, under the rules of the
Securities and Exchange Commission, to be included in the Corporation’s
proxy statement soliciting proxies for his or her election as a
director.
|
3.
|
Procedure
for Nominations by Shareholders
. Any shareholder
entitled to vote in the election of directors generally may nominate one
or more persons for election as directors at an Annual Meeting only if
such shareholder has given timely written notice of such shareholder’s
intent to make such nomination or nominations. To be timely, a
shareholder’s notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation not less
than ninety (90) days nor more than one hundred twenty (120) days prior to
the anniversary of the date on which the proxy statement was first mailed
relating to the immediately preceding Annual Meeting of shareholders;
provided
,
however
,
that in the event that the Annual Meeting
is called for a date that is not within thirty (30) days before or after
such anniversary date, in order for a shareholder’s notice to be timely it
must be so received not later than the close of business on the tenth
(10th) day following the day on which notice of the date of such Annual
Meeting was mailed or public disclosure of the date of such Annual Meeting
was made, whichever first occurs. In no event shall the public
announcement of an adjournment of an Annual Meeting commence a new time
period for the giving of a shareholder’s notice as described
above.
|
|
To
be in proper written form, a shareholder’s notice to the Secretary must
set forth: (i) the name and record address of the shareholder of record
making such nomination and any other person on whose behalf the nomination
is being made, and of the person or persons to be nominated, (ii) the
class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by such shareholder or such
other person, (iii) a description of all arrangements or understandings
between such shareholder and any such other person or persons or any
nominee or nominees in connection with the nomination by such shareholder,
(iv) such other information regarding each nominee proposed by such
shareholder as would be required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required to be disclosed, pursuant to the rules of the Securities and
Exchange Commission had the nominee been nominated or intended to be
nominated by the Board of Directors, and shall include a consent signed by
each such nominee to being named in the proxy statement for the Annual
Meeting as a nominee and to serve as a director of the Corporation if so
elected and (v) a representation that such shareholder intends to appear
in person or by proxy at the Annual Meeting to make such
nomination.
|
4.
|
Substitution
of Nominees
. In the event that a person is validly
designated as a nominee in accordance with Section 2 of this Article II
and shall thereafter become unable or unwilling to stand for election to
the Board of Directors, a substitute nominee may be designated by those
named as proxies in proxies solicited on behalf of the Board of Directors
if the person was designated as nominee in accordance with Section 2 of
this Article II.
|
5.
|
Determination
of Compliance with Procedure
. If the Chairman of the
Election Meeting or the Annual Meeting determines that a nomination was
not in accordance with the foregoing procedures, such nomination shall be
void and shall be disregarded.
|
1.
|
Directors
. The
business, property and affairs of this Corporation shall be managed by or
under the direction of the Board of Directors consisting of not less than
nine nor more than eighteen Directors, the exact number to be determined
by the Board of Directors from time to time. All Directors shall be
shareholders of record. The Directors shall be divided into three classes
designated Class I, Class II and Class III. Such classes shall be as
nearly equal in number as the total number of Directors constituting the
entire Board of Directors permits. One class shall be chosen annually at
the Annual Meeting of shareholders and the members of such class shall
hold office until their successors be elected and qualified. The Directors
may increase the prescribed number of Directors by the concurring vote of
a majority of the prescribed number of Directors. Any increase or decrease
in the prescribed number of Directors shall be so apportioned among the
classes of Directors as to make all the classes as nearly equal in number
as possible. No reduction of the number of Directors shall remove or
shorten the term of any Director in office. A majority of the number of
Directors prescribed shall constitute a quorum for the transaction of
business.
|
2.
|
Meetings
. The
Chairman, the Chief Executive Officer or any Vice Chairman may and upon
written application of any three Directors shall call a meeting of the
Board of Directors to be held at such time and place as may be determined
by the person calling said meeting and shall cause notice thereof to be
given. Unless waived in writing, three days verbal or written (mail)
notice shall be required provided, however, that if in the judgment of any
two officers an emergency exists, a meeting may be called forthwith by
telephone or facsimile or verbal notice and such notice shall be deemed
sufficient notice notwithstanding that some of the Directors may not have
actual notice.
|
3.
|
Written
Consent
. If all the Directors, or all members of a
committee of the Board of Directors, as the case may be, severally or
collectively consent in writing to any action taken or to be taken by the
Corporation, and the number of such Directors or members constitutes a
quorum for such action, such action shall be a valid corporate action as
though it had been authorized at a meeting of the Board of Directors or
committee, as the case may be. The Secretary shall file such consents with
the minutes of the Board of Directors or of the committee, as the case may
be.
|
4.
|
Participation
by Telephone
. A Director may participate in a meeting of
the Board of Directors or of a committee by any means of communication by
which all Directors participating in the meeting may simultaneously hear
one another during the meeting, and participation in a meeting pursuant to
this subsection shall constitute presence in person at such
meeting.
|
5.
|
Vacancies
. In
case any vacancy or vacancies shall exist in the Board of Directors at any
time the remaining members of the Board by majority action may fill the
vacancy or vacancies. The term of a Director elected to fill a vacancy
expires at the next shareholders meeting at which Directors are
elected.
|
6.
|
Committees
. The
Board of Directors may from time to time appoint from its membership such
committees as it may deem necessary or desirable for the best interests of
the Corporation and may delegate to any committee all needful authority to
the extent permitted by law. The meetings of all committees are open to
all directors. Each committee shall fix its own rules as to procedure and
calling of meetings. It shall appoint a Secretary, who need not be a
member of the committee. Such Secretary shall call meetings of the
committee on the request of the Chair of the committee or any two members
and shall keep permanent record of all of its proceedings. A majority of
the members of any committee shall constitute a
quorum.
|
7.
|
Executive
Committee
. The Directors shall appoint an Executive
Committee consisting of the Chairman, if any, the Chief Executive Officer
(if he shall also be a Director). the Lead Independent Director
and at least two other Directors, but in no event shall the Committee
consist of less than five members. The Board of Directors may at any time
decrease (subject to the provisions of the preceding paragraph) or
increase the size of said Committee, may change the membership thereof and
may fill vacancies therein.
|
|
During
intervals between meetings of the Board of Directors, the Executive
Committee shall possess and may exercise all the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, but the Committee shall have no power to declare dividends or
do other things specially reserved by law to the Directors. The Executive
Committee shall have power to appoint such subcommittees as it may deem
necessary to report and make recommendations to the Executive Committee.
Any action taken by the Executive Committee shall be subject to change,
alteration and revision by the Board of Directors, provided that no rights
or acts of others shall be affected by any such alteration or
revision.
|
8.
|
Finance
and Pension Committee
. A Finance and Pension Committee
consisting of at least three Directors shall be appointed by the Board of
Directors. The Committee shall advise and assist the Chief Financial
Officer and the Treasurer in major matters concerning the finances of the
Corporation and in matters of major policy decisions in the purchase and
sale of securities. In performance of this the Committee shall regularly
review the financial condition of the Corporation so as to counsel these
officers and the Board on the total financial resources, strength and
capabilities of the Corporation. In this connection, the Committee shall
analyze and advise on fundamental corporate changes in capital structure
(both debt and equity); review the capital structure of the Corporation
and make recommendations with respect to management proposals concerning
financing, purchases of treasury stock, investments, and dividend actions;
review periodically the Corporation’s risk management program and its
adequacy to safeguard the Corporation against extraordinary liabilities or
losses; and advise and assist in matters such as short-term investments,
credit liabilities, financings, and hedges of foreign currency
exposures.
|
|
The
Committee shall oversee the Corporation’s administration of its pension
plans and of the pension plans of its subsidiaries. The Committee shall be
responsible for setting (subject to the approval of the Board of
Directors) the retirement policies of the Corporation and its
subsidiaries; for amending pension plans, savings and retirement plans,
stock ownership plans or any similar plans or related trust agreements;
and for approving actuarial assumptions and investment policies for the
Corporation’s pension plans. It shall report at least annually to the
Board of Directors. The Committee may delegate any or all of these
functions to such employees as it, in its judgment, deems
appropriate.
|
|
Specifically,
the Committee shall approve retaining or terminating the services of
actuaries, lawyers, accountants or other professionals for the plans;
shall approve annually the amount of the contributions to be made by the
Corporation to the respective plans; and shall approve appointing and
terminating trustees and investment managers and determine the allocation
of the assets of the plans among one or more trustees or investment
managers.
|
9.
|
Audit
Committee
. An Audit Committee consisting of at least
three Directors shall be appointed by the Board of Directors. Except as
permitted by the independence requirements of the New York Stock Exchange,
none of the Audit Committee members shall be officers or employees of the
Corporation or any of its affiliates. Audit Committee members shall have
no relationship to the Corporation that may interfere with the exercise of
their independence from management and the Corporation. Each member of the
Audit Committee shall be financially literate and at least one member
shall have accounting or related financial management expertise, as such
qualifications are interpreted by the Corporation’s Board of Directors in
its business judgment.
|
|
The
responsibilities of the Audit Committee shall be
to:
|
|
(a)
|
Meet
with the independent auditor prior to the audit to review the plan and
scope of the audit; meet with management and the independent auditor to
review the audited financial statements, including major issues and
developments regarding financial reporting and accounting matters; and
review the management letter prepared by the independent auditor and
management’s responses.
|
|
(b)
|
Discuss
with the independent auditor the matters required to be discussed on an
annual or quarterly basis, as the case may be, under generally accepted
auditing standards and any other applicable laws or regulations relating
to the conduct of the audit.
|
|
(c)
|
Meet
periodically with management and the independent and internal auditors to
review the adequacy of the Corporation’s system of internal controls over
financial reporting and the safeguarding of assets and review significant
risk and control exposures and the steps being taken by management to
monitor such exposures.
|
|
(d)
|
Recommend
to the Board of Directors the appointment of the independent auditor,
subject to shareholder approval, which firm is ultimately accountable to
the Audit Committee and the Board of Directors; approve the fees to be
paid to the independent auditor; receive and review with the independent
auditor periodic reports regarding the auditor’s independence and if so
determined by the Audit Committee, recommend that the Board of Directors
take appropriate action to satisfy itself of the independence of the
auditor; and evaluate the performance of the independent auditor and, if
so determined by the Audit Committee, recommend that the Board of
Directors replace the independent
auditor.
|
|
(e)
|
Periodically
review the audit plan, the internal audit department
responsibilities,
budget, resources, skills and staffing; concur in the appointment or
replacement of the Director of Internal Audit; review at least annually a
summary of audit findings prepared by the internal auditing department and
management’s responses.
|
|
(f)
|
Review
with the Corporation’s General Counsel the Corporation’s legal compliance,
including the Business Conduct Guidelines and legal, regulatory or
compliance matters that may have a material impact on the financial
statements.
|
|
(g)
|
Evaluate
the adequacy of the Corporation’s Audit Committee Charter annually and
recommend any changes to the Board of Directors for
adoption.
|
|
(h)
|
Perform
any other oversight functions as requested by the Board of
Directors.
|
10.
|
Compensation
and Organization Committee
. A Compensation and
Organization Committee consisting of at least three Directors, none of
whom shall be employees of the Corporation or any of its subsidiaries,
shall be appointed by the Board of Directors. The Committee shall review
and approve major organization and compensation structure changes as
recommended by Management. Although the Board, itself, will review the
performance of the chief executive officer and fix his or her salary, the
Committee shall approve the performance and determine the salaries of the
other executive officers of the Corporation and of other senior executives
whose base salary exceeds an amount fixed by the Board of Directors; shall
determine the compensation of all executive officers and such senior
executives under the Corporation’s senior executive compensation plans;
shall administer all of the Corporation’s senior executive compensation
plans; and shall assure that there is a succession plan in
place.
|
11.
|
Corporate
Governance Committee
. A Corporate Governance Committee
consisting of at least three directors, none of whom shall be employees of
the Corporation or any of its subsidiaries, shall be appointed by the
Board of Directors. The Committee shall consider and make recommendations
to the Board of Directors as to Board of Director membership with respect
to names generated by the Committee itself or submitted by shareholders.
The Committee shall consider and make recommendations to the Board of
Directors with respect to Board of Director committee membership and chair
assignments. (These will normally be acted upon by the Board of Directors
at its Annual Meeting held immediately after the Annual Meeting of
shareholders.) The Committee shall consider and make recommendations to
the Board of Directors with respect to the number of members of the Board
of Directors. (The Charter and Bylaws provide for not less than eight nor
more than eighteen as may be determined by the Board). Annually, the
Committee shall consider and recommend to the Board of Directors the
persons whom the Committee proposes that the Board of Directors nominate
for election as directors at the Annual Meeting of shareholders. The
Committee shall consider and make recommendations to the Board of
Directors with respect to remuneration of
directors.
|
|
The
Committee shall provide guidance to the Management on major issues in
areas of corporate social responsibility, including environmental issues
and public affairs. The Committee shall review and approve policy
guidelines to be used by Management in making charitable contributions and
shall annually review all charitable contributions made by the Corporation
during the previous twelve months and recommend to the Board the level of
contributions to be set for the ensuing
year.
|
12.
|
In
the absence of any one or more members from a meeting of any of the
committees provided for in these Bylaws, the Chairman, or the Chief
Executive Officer or the Lead Independent Director, may in his or her
discretion invite any member or members of the Board (otherwise qualified
to serve) to attend such meeting. Temporary members thus appointed to
attend for absentees shall act as regular members and shall have the right
to vote.
|
13.
|
Powers
of All Committees
. The powers of all committees are at
all times subject to the control of the Directors, and any member of any
committee may be removed at any time at the pleasure of the
Board.
|
1.
|
Election
of Officers
. The Board of Directors shall have power to
elect from its own members or otherwise a Chairman, a Lead Independent
Director, a President, a Chief Executive
Officer, one or more Vice Chairmen and Vice Presidents, a
Secretary, a Treasurer, one or more Assistant Treasurers and Assistant
Secretaries, and such other officers, agents and employees as it may deem
expedient, and to define the duties and authority of all officers,
employees and agents and to delegate to them such lawful powers as may be
deemed advisable.
|
|
The
officers shall respectively perfonn all acts and duties required of such
officers by
law,
by the Charter and Bylaws of this Corporation, or by the Board of
Directors.
|
2.
|
Chairman
of the Board
. If the Directors have elected a Chairman,
the Chairman shall preside at all meetings of the Board, except that in
the Chairman’s absence, the Chief Executive Officer (if he shall be
a Director) shall preside. The Chairman shall have such additional
duties as the Board of Directors or the Executive Committee may
assign.
|
3.
|
Lead
Independent Director
.
If the Directors
have elected a Lead Independent Director, the Lead Independent
Director shall preside at all meetings of the Board in the absence of the
Chairman and the Chief Executive Officer (if the Chief Executive Officer
shall be a Director), including, if the Chairman shall be a non-management
Director. all meetings held in executive session. In the
absence of the Lead Independent Director. the other Directors
present shall designate a person to preside. The Lead Independent Director
shall have such additional duties as the Board of Directors or the
Executive Committee may
assign.
|
4.
|
President
. The
President shall be elected by the Directors and shall have such duties as
the Board of Directors or the Executive Committee may
assign.
|
5.
|
Chief
Executive Officer
. One of the officers shall be
appointed Chief Executive Officer of the Corporation by the Board of
Directors. Subject to the Board of Directors and the Executive Committee,
the Chief Executive Officer shall have general supervision and control of
the policies, business and affairs of the
Corporation.
|
6.
|
Vice
Chairmen
. Each Vice Chairman shall have such powers and
perform such duties as may be conferred upon him or her or determined by
the Chief Executive Officer.
|
7.
|
Vice
Presidents
. Each Vice President shall have such powers
and perform such duties as may be conferred upon him or her or determined
by the Chief Executive Officer.
|
8.
|
Treasurer
. The
Treasurer shall have the oversight and control of the funds of the
Corporation and shall have the power and authority to make and endorse
notes, drafts and checks and other obligations necessary for the
transaction of the business of the Corporation except as herein otherwise
provided.
|
9.
|
Controller
. The
Controller shall have the oversight and control of the accounting records
of the Corporation and shall prepare such accounting reports and
recommendations as shall be appropriate for the operation of the
Corporation.
|
10.
|
Secretary
. It
shall be the duty of the Secretary to make and keep records of the votes,
doings and proceedings of all meetings of the shareholders and Board of
Directors of the Corporation, and of its Committees, and to authenticate
records of the Corporation.
|
11.
|
Assistant
Treasurers
. The Assistant Treasurers shall have such
duties as the Treasurer shall
determine.
|
12.
|
Assistant
Secretaries
. The Assistant Secretaries shall have such
duties as the Secretary shall
determine.
|
13.
|
Powers
of All Officers
. The powers of all officers are at all
times subject to the control of the Directors, and any officer may be
removed at any time at the pleasure of the
Board.
|
|
(a)
|
is
or was a Director, officer, employee or agent of the Corporation,
or
|
|
(b)
|
served
at the corporation’s request as a director, officer, employee or
agent of
another corporation,
|
|
|
for
expenses, including attorney’s fees, and such amount of any judgment,
money decree, fine, penalty or settlement for which he or she may have
become liable as the Board of Directors deems reasonable, actually
incurred by him or her in connection with the defense or reasonable
settlement of any such action, suit or proceeding or any appeal
therein.
|
|
The
corporate seal shall be in the custody of the Secretary and either the
Secretary or any other officer shall have the power to affix the same for
the Corporation.
|
1.
|
Signatures
. Certificates
of stock shall be signed by the Chairman, the President or a Vice
President and by the Secretary or the Treasurer (except that where any
such certificate is signed by a transfer agent or transfer clerk and by
the registrar, the signatures of any such Chairman, President, Vice
President, Secretary or Treasurer may be facsimiles, engraved or printed)
and shall be sealed with the seal of the corporation (or shall bear a
facsimile of such seal).
|
2.
|
Lost
Certificates
. No certificate for shares of stock in the
Corporation shall be issued in place of any certificate alleged to have
been lost, stolen or destroyed except upon production of such evidence of
such loss, theft or destruction as the Board of Directors in its
discretion may require and upon delivery to the Corporation of a bond of
indemnity in form and, unless such requirement is waived by Resolution of
the Board, with one or more sureties, satisfactory to the Board in at
least double the value of the stock represented by said
Certificate.
|
|
The
Corporation’s fiscal year shall close on the Saturday nearest December
31st of each year.
|
|
The
Board of Directors shall provide for a yearly independent audit, the form
and scope of which shall be determined by the Board from time to
time.
|
|
The
Board of Directors of the Corporation may adopt, amend or repeal the
Bylaws of the Corporation, subject, however, to the power of the
shareholders to adopt, amend or repeal the same, provided that any notice
of a meeting of shareholders or of the Board of Directors at which Bylaws
are to be adopted, amended or repealed, shall include notice of such
proposed action.
|
|
(a)
|
Except
as set forth in subsection (b) hereof, the Corporation shall not acquire
any of its voting equity securities (as defined below) at a price per
share above the market price per share (as defined below) of such
securities on the date of such acquisition from any person actually known
by the Corporation to be the beneficial owner (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended, or any
successor rule or regulation) of more than three percent of the
Corporation’s voting equity securities who has been the beneficial owner
of the Corporation’s voting equity securities for less than two years
prior to the date of the Corporation’s acquisition thereof, unless such
acquisition (i) has been approved by a vote of a majority of the shares
entitled to vote, excluding shares owned by any beneficial owner any of
whose shares are proposed to be acquired pursuant to the proposed
acquisition that is the subject of such vote or (ii) is pursuant to an
offer made on the same terms to all holders of securities of such class.
The determination of the Board of Directors shall be conclusive in
determining the price paid per share for acquired voting equity securities
if the Corporation acquires such securities for consideration other than
cash.
|
|
(b)
|
This
provision shall not restrict the Corporation from: (i) acquiring shares in
the open market in transactions in which there has been no prior
arrangement with, or solicitation of (other than a solicitation publicly
made to all holders), any selling holder of voting equity securities or in
which all shareholders desiring to sell their shares have an equal chance
to sell their shares; (ii) offering to acquire shares of shareholders
owning less than 100 shares of any class of voting equity securities;
(iii) acquiring shares pursuant to the terms of a stock option or similar
plan that has been approved by a vote of a majority of the Corporation’s
common shares represented at a meeting of shareholders and entitled to
vote thereon; (iv) acquiring shares from, or on behalf of, any employee
benefit plan maintained by the Corporation or any subsidiary or any
trustee of, or fiduciary with respect to, any such plan when acting in
such capacity; or (v) acquiring shares pursuant to a statutory appraisal
right or otherrvise as required by
law.
|
|
(c)
|
Market
price per share on a particular day means the highest sale price on that
day or during the period of five trading days immediately preceding that
day of a share of such voting equity security on the Composite Tape for
New York Stock Exchange-Listed Stocks, or if such voting equity security
is not quoted on the Composite Tape on the New York Stock Exchange or
listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such voting equity security is listed, or, if such voting equity security
is not listed on any such exchange, the highest sales price or, if sales
price is not reported, the highest closing bid quotation with respect to a
share of such voting equity security on that day or during the period of
five trading days immediately preceding that day on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
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 voting equity
security as determined by a majority of the Board of
Directors.
|
|
(d)
|
Voting
equity securities of the Corporation means equity securities issued from
time to time by the Corporation which by their terms are entitled to be
voted generally in the election of the directors of the
Corporation.
|
|
(e)
|
The
Board of Directors shall have the power to interpret the terms and
provisions of, and make any determinations with respect to, this Article
XI, which interpretations and determinations shall be
conclusive.
|
STANLEY
BLACK & DECKER, INC.
|
|||
|
By:
|
/s/ Craig A. Douglas | |
Name: Craig A. Douglas | |||
Title: Vice President and Treasurer | |||
THE BLACK & DECKER CORPORATION | |||
|
By:
|
/s/ Mark M. Rothleitner | |
Name: Mark M. Rothleitner | |||
Title: Assistant Treasurer | |||
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee |
|||
|
By:
|
/s/ Lawrence M. Kusch | |
Name: Lawrence M. Kusch | |||
Title: Vice President | |||
THE BLACK & DECKER CORPORATION | |||
|
By:
|
/s/ Mark M. Rothleitner | |
Name: Mark M. Rothleitner | |||
Title: Assistant Treasurer | |||
STANLEY
BLACK & DECKER, INC.
|
|||
|
By:
|
/s/ Craig A. Douglas | |
Name: Craig A. Douglas | |||
Title: Vice President and Treasurer | |||
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee |
|||
|
By:
|
/s/ Cheryl L. Clarke | |
Name: Cheryl L. Clarke | |||
Title: Vice President | |||
THE BLACK & DECKER CORPORATION | |||
|
By:
|
/s/ Mark M. Rothleitner | |
Name: Mark M. Rothleitner | |||
Title: Assistant Treasurer | |||
STANLEY
BLACK & DECKER, INC.
|
|||
|
By:
|
/s/ Craig A. Douglas | |
Name: Craig A. Douglas | |||
Title: Vice President and Treasurer | |||
THE
BANK OF NEW YORK MELLON, as Trustee
|
|||
|
By:
|
/s/ Cheryl L. Clarke | |
Name: Cheryl L. Clarke | |||
Title: Vice President | |||
THE BLACK & DECKER CORPORATION | |||
|
By:
|
/s/ Mark M. Rothleitner | |
Name: Mark M. Rothleitner | |||
Title: Assistant Treasurer | |||
STANLEY
BLACK & DECKER, INC.
|
|||
|
By:
|
/s/ Craig A. Douglas | |
Name: Craig A. Douglas | |||
Title: Vice President and Treasurer | |||
THE
BANK OF NEW YORK MELLON, as Trustee
|
|||
|
By:
|
/s/ Cheryl L. Clarke | |
Name: Cheryl L. Clarke | |||
Title: Vice President | |||
BLACK & DECKER HOLDINGS, LLC | |||
|
By:
|
/s/ Elizabeth A. Dolce | |
Name: Elizabeth A. Dolce | |||
Title: Vice Chairman | |||
THE BLACK & DECKER CORPORATION | |||
|
By:
|
/s/ Mark M. Rothleitner | |
Name: Mark M. Rothleitner | |||
Title: Assistant Treasurer | |||
STANLEY
BLACK & DECKER, INC.
|
|||
|
By:
|
/s/ Craig A. Douglas | |
Name: Craig A. Douglas | |||
Title: Vice President and Treasurer | |||
THE
BANK OF NEW YORK MELLON, as Trustee
|
|||
|
By:
|
/s/ Cheryl L. Clarke | |
Name: Cheryl L. Clarke | |||
Title: Vice President | |||
Page |
SECTION 1.1
SECTION 1.2 SECTION 1.3 SECTION 1.4 |
DEFINITIONS
OTHER DEFINITIONS INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT RULES OF CONSTRUCTION |
1
5 5 6 |
SECTION 2.1
SECTION 2.2 SECTION 2.3 SECTION 2.4 SECTION 2.5 SECTION 2.6 SECTION 2.7 SECTION 2.8 SECTION 2.9 SECTION 2.10 SECTION 2.11 SECTION 2.12 SECTION 2.13 SECTION 2.14 SECTION 2.15 |
FORM AND
DATING
EXECUTION AND AUTHENTICATION AMOUNT UNLIMITED; ISSUABLE IN SERIES BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES REGISTRAR AND PAYING AGENT PAYING AGENT TO HOLD MONEY IN TRUST HOLDER LISTS TRANSFER AND EXCHANGE MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES OUTSTANDING DEBT SECURITIES TEMPORARY DEBT SECURITIES CANCELLATION PAYMENT OF INTEREST; DEFAULTED INTEREST COMPUTATION OF INTEREST CUSIP AND ISIN NUMBERS |
7
7 9 11 13 13 14 14 16 16 17 17 17 18 19 |
SECTION 3.1
SECTION 3.2 SECTION 3.3 SECTION 3.4 SECTION 3.5 SECTION 3.6 SECTION 3.7 |
PAYMENT OF DEBT
SECURITIES
LIMITATION ON LIENS LIMITATION ON SALE LEASEBACK TRANSACTIONS MAINTENANCE OF OFFICE OR AGENCY COMPLIANCE CERTIFICATE STATEMENT BY OFFICERS AS TO DEFAULT FURTHER INSTRUMENTS AND ACTS |
19
20 20 21 21 22 22 |
SECTION 4.1 | MERGER, CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS OF THE COMPANY | 22 |
SECTION 5.1
SECTION 5.2 SECTION 5.3 SECTION 5.4 SECTION 5.5 |
OPTIONAL
REDEMPTION
APPLICABILITY OF ARTICLE ELECTION TO REDEEM; NOTICE TO TRUSTEE SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED NOTICE OF REDEMPTION |
22
23 23 23 24 |
SECTION 5.6
SECTION 5.7 SECTION 5.8 |
DEPOSIT OF
REDEMPTION PRICE
DEBT SECURITIES PAYABLE ON REDEMPTION DATE DEBT SECURITIES REDEEMED IN PART |
25
25 25 |
SECTION 6.1
SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 SECTION 6.6 SECTION 6.7 SECTION 6.8 SECTION 6.9 SECTION 6.10 SECTION 6.11 |
EVENTS OF
DEFAULT
ACCELERATION OTHER REMEDIES WAIVER OF EXISTING DEFAULTS CONTROL BY MAJORITY LIMITATION ON SUITS RIGHTS OF HOLDERS TO RECEIVE PAYMENT COLLECTION SUIT BY TRUSTEE TRUSTEE MAY FILE PROOFS OF CLAIM PRIORITIES UNDERTAKING FOR COSTS |
25
27 27 27 28 28 28 29 29 29 29 |
SECTION 7.1
SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 SECTION 7.11 |
DUTIES OF
TRUSTEE
RIGHTS OF TRUSTEE INDIVIDUAL RIGHTS OF TRUSTEE TRUSTEE'S DISCLAIMER NOTICE OF DEFAULTS REPORTS BY TRUSTEE TO HOLDERS COMPENSATION AND INDEMNITY REPLACEMENT OF TRUSTEE SUCCESSOR TRUSTEE BY MERGER ELIGIBILITY; DISQUALIFICATION PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY |
30
31 32 32 33 33 33 34 35 35 36 |
SECTION 8.1
SECTION 8.2 SECTION 8.3 SECTION 8.4 SECTION 8.5 SECTION 8.6 SECTION 8.7 SECTION 8.8 SECTION 8.9 SECTION 8.10 |
OPTION TO EFFECT
LEGAL DEFEASANCE OR COVENANT DEFEASANCE
LEGAL DEFEASANCE AND DISCHARGE COVENANT DEFEASANCE CONDITIONS TO LEGAL OR COVENANT DEFEASANCE SATISFACTION AND DISCHARGE OF INDENTURE SURVIVAL OF CERTAIN OBLIGATIONS ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE APPLICATION OF TRUST MONEYS REPAYMENT TO THE COMPANY; UNCLAIMED MONEY REINSTATEMENT |
36
36 36 37 38 39 39 39 40 40 |
SECTION 9.1
SECTION 9.2 SECTION 9.3 SECTION 9.4 SECTION 9.5 |
WITHOUT CONSENT
OF HOLDERS
WITH CONSENT OF HOLDERS COMPLIANCE WITH TRUST INDENTURE ACT NOTATION ON OR EXCHANGE OF DEBT SECURITIES TRUSTEE TO SIGN AMENDMENTS |
40
41 42 42 42 |
SECTION 10.1
SECTION 10.2 SECTION 10.3 SECTION 10.4 SECTION 10.5 SECTION 10.6 SECTION 10.7 SECTION 10.8 SECTION 10.9 SECTION 10.10 SECTION 10.11 SECTION 10.12 SECTION 10.13 SECTION 10.14 SECTION 10.15 SECTION 10.16 |
TRUST INDENTURE
ACT CONTROLS
NOTICES COMMUNICATION BY HOLDERS WITH OTHER HOLDERS CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT STATEMENTS REQUIRED IN CERTIFICATE OR OPINION WHEN DEBT SECURITIES DISREGARDED RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR LEGAL HOLIDAYS GOVERNING LAW; WAIVER OF JURY TRIAL NO RECOURSE AGAINST OTHERS SUCCESSORS MULTIPLE ORIGINALS VARIABLE PROVISIONS TABLE OF CONTENTS; HEADINGS FORCE MAJEURE SEVERABILITY |
42
42 43 43 44 44 44 44 44 45 45 45 45 45 45 45 |
TIA Section
310(a)(1) (a)(2) (a)(3) (a)(4) (b) (c) 311(a) (b) (c) 313(a) (b)(1) (b)(2) (c) (d) 314(a) (b) (c)(1) (c)(2) (c)(3) (d) (e) 315(a) (b) (c) (d) (e) 316(a)(last sentence) (a)(1)(A) (a)(1)(B) (a)(2) (b) 317(a)(1) (a)(2) (b) 318(a) |
|
Indenture
Section
7.10 7.10 N.A. N.A. 7.8;7.10 N.A. 7.11 7.11 N.A. 2.7 10.3 10.3 7.6 N.A. 7.6 7.6 7.6 3.5;10.2;10.5 N.A. 10.4 10.4 N.A. N.A. 10.5 7.1 7.5;10.2 7.1 7.1 6.11 10.6 6.5 6.4 N.A. 6.7 6.8 6.9 2.5 10.1 |
Term |
Defined in
Section |
||
|
“
Act”
“Authenticating Agent” “Bankruptcy Law” “Company Order” “Corporate Trust Office” “Covenant Defeasance” “Custodian” “Defaulted Interest” “Event of Default” “Legal Defeasance” “Notice of Default” “Paying Agent” “Registrar” “Security Register” “Special Interest Payment Date” “Special Record Date” |
1.5
2.2 6.1 2.2 3.4 8.3 6.1 2.13 6.1 8.2 6.1 2.5 2.5 2.5 2.13 2.13 |
FIRST: to the Trustee for amounts due under Section 7.7 ; |
SECOND: to Holders for amounts due and unpaid on the Debt Securities of the applicable series for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Debt Securities of the applicable series for principal and interest, respectively; and |
THIRD: to the Company. |
THE BLACK & DECKER CORPORATION | ||||
|
By:
|
/s/ Charles E. Fenton | ||
Name: | Charles E. Fenton | |||
Title: | Senior Vice President and General Counsel | |||
THE BLACK & DECKER CORPORATION | ||||
|
By:
|
/s/ Alexander Pabon | ||
Name: | Alexander Pabon | |||
Title: | Assistant Vice President | |||
Page
|
SECTION
1.1
SECTION
1.2
SECTION
1.3
|
DEFINITIONS
INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT
RULES
OF CONSTRUCTION
|
1
2
2
|
SECTION
2.1
SECTION
2.2
SECTION
2.3
SECTION
2.4
SECTION
2.5
SECTION
2.6
|
DESIGNATION
PRINCIPAL
AMOUNT; SERIES TREATMENT
PAYMENT
OF PRINCIPAL AND INTEREST
FORM
TRANSFER
RESTRICTIONS
SINKING
FUND
|
2
2
3
3
4
5
|
SECTION
5.1
SECTION
5.2
SECTION
5.3
SECTION
5.4
SECTION
5.5
SECTION
5.6
SECTION
5.7
|
RATIFICATION
TRUSTEE
GOVERNING
LAW
TABLE
OF CONTENTS; HEADINGS
MULTIPLE
ORIGINALS
SEVERABILITY
EFFECTIVE
DATE
|
5
5
5
5
6
6
6
|
(i)
|
a
term has the meaning assigned to it;
|
|
(ii)
|
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. GAAP;
|
|
(iii)
|
“or”
is not exclusive;
|
|
(iv)
|
“including”means
including without limitation;
|
|
(v)
|
words
in the singular include the plural and words in the plural include the
singular;
|
|
(vi)
|
the
principal amount of any noninterest bearing or other discount security at
any date shall be the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in accordance with
U.S. GAAP; and
|
|
(vii)
|
unless
otherwise indicated, all references to Articles or Sections refer to
Articles or Sections of this Supplemental
Indenture.
|
THE BLACK &DECKER CORPORATION | |||
|
By:
|
/s/ Charles E. Fenton | |
Name: Charles E. Fenton | |||
Title: Senior Vice President and General Counsel | |||
THE BANK OF NEW YORK, as Trustee | |||
|
By:
|
/s/ Alexander Pabon | |
Name: Alexander Pabon | |||
Title: Assistant Vice President | |||
No.___
|
Principal
Amount $300,000,000,
as
revised by the Schedule of
Increases
and Decreases in
Global
Security attached hereto
|
THE BLACK &DECKER CORPORATION | |||
|
By:
|
/s/ | |
Name: | |||
Title: | |||
By: | |
Authorized Signatory | |
Date: |
Date
of Exchange
|
Amount
of decrease in Principal Amount of this Global Security
|
Amount
of increase in Principal Amount of this Global Security
|
Principal
Amount of this Global Security following such decrease or
increase
|
Signature
of authorized signatory of Trustee or Securities
Custodian
|
||||
|
|
|
|
ARTICLE
I. DEFINITIONS; INCORPORATION BY REFERENCE
|
|
SECTION
1.1 Definitions.
|
1
|
SECTION
1.2 Incorporation by Reference of Trust Indenture Act.
|
2
|
SECTION
1.3Rules of Construction.
|
2
|
ARTICLE
II. THE NOTES
|
|
SECTION
2.1 Designation.
|
3
|
SECTION
2.2 Principal Amount; Series Treatment.
|
3
|
SECTION
2.3 Payment of Principal and Interest.
|
3
|
SECTION
2.4 Form.
|
5
|
SECTION
2.5 Transfer Restrictions.
|
6
|
SECTION
2.6Sinking Fund.
|
7
|
ARTICLE
III. OPTIONAL REDEMPTION OF THE NOTES; CHANGE OF CONTROL REPURCHASE
EVENT
|
|
ARTICLE
IV. EXECUTION OF THE NOTES
|
|
ARTICLE
V. MISCELLANEOUS
|
|
SECTION
5.1 Ratification.
|
7
|
SECTION
5.2 Trustee.
|
7
|
SECTION
5.3 Governing Law.
|
7
|
SECTION
5.4 Table of Contents; Headings.
|
8
|
SECTION
5.5Multiple Originals.
|
8
|
SECTION
5.6Severability.
|
8
|
SECTION
5.7Effective Date.
|
8
|
|
(i)
|
a
term has the meaning assigned to
it;
|
|
(ii)
|
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. GAAP;
|
|
(iii)
|
“or”
is not exclusive;
|
|
(iv)
|
“including”
means including without limitation;
|
|
(v)
|
words
in the singular include the plural and words in the plural include the
singular;
|
|
(vi)
|
the
principal amount of any noninterest bearing or other discount security at
any date shall be the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in accordance with
U.S. GAAP; and
|
|
(vii)
|
unless
otherwise indicated, all references to Articles or Sections refer to
Articles or Sections of this Supplemental
Indenture.
|
Moody’s
Rating*
|
Percentage
|
||||
Ba1
|
0.25
|
%
|
|||
Ba2
|
0.50
|
%
|
|||
Ba3
|
0.75
|
%
|
|||
B1
or below
|
1.00
|
%
|
S&P
Rating*
|
Percentage
|
||||
BB+
|
0.25
|
%
|
|||
BB
|
0.50
|
%
|
|||
BB-
|
0.75
|
%
|
|||
B+
or below
|
1.00
|
%
|
THE
BLACK & DECKER CORPORATION
|
|||
By:
|
/s/
MARK M. ROTHLEITNER
|
||
Name:
|
Mark
M. Rothleitner
|
||
Title:
|
Vice
President – Investor Relations
|
||
and
Treasurer
|
THE
BANK OF NEW YORK MELLON, as Trustee
|
|||
By:
|
/s/
CHERYL L. CLARKE
|
||
Name:
|
Cheryl
L. Clarke
|
||
Title:
|
Vice
President
|
No.
___
|
Principal
Amount $350,000,000,
|
as
revised by the Schedule of
|
|
Increases
and Decreases in
|
|
Global
Security attached hereto
|
THE
BLACK & DECKER CORPORATION
|
|||
By:
|
/s/
|
||
|
Name:
|
||
Title: |
By:
|
_____________________________
|
Authorized
Signatory
|
|
Date:
|
Moody’s
Rating*
|
Percentage
|
|||||||
Ba1
|
0.25
|
%
|
||||||
Ba2
|
0.50
|
%
|
||||||
Ba3
|
0.75
|
%
|
||||||
B1 or below | 1.00 | % |
S&P
Rating*
|
Percentage
|
||||
BB+
|
0.25
|
%
|
|||
BB
|
0.50
|
%
|
|||
BB-
|
0.75
|
%
|
|||
B+
or below
|
1.00
|
%
|
●
|
accept
for payment all Notes or portions of Notes properly tendered pursuant to
the Company’s offer;
|
●
|
deposit
with the Paying Agent an amount equal to the aggregate purchase price in
respect of all Notes or portions of Notes properly tendered;
and
|
●
|
deliver
or cause to be delivered to the Trustee the Notes properly accepted,
together with an Officers’ Certificate stating the aggregate principal
amount of Notes being purchased by the
Company.
|
Date
of Exchange
|
Amount
of decrease in Principal Amount of this Global Security
|
Amount
of increase in Principal Amount of this Global Security
|
Principal
Amount of this Global Security following such decrease or
increase
|
Signature
of authorized signatory of Trustee or Securities
Custodian
|
||||
Page
|
||
ARTICLE
I DEFINITIONS AND INCORPORATION BY REFERENCE
|
||
SECTION
1.1
|
Definitions
|
1
|
SECTION
1.2
|
Other
Definitions
|
5
|
SECTION
1.3
|
Incorporation
by Reference of Trust Indenture Act
|
6
|
SECTION
1.4
|
Rules
of Construction
|
6
|
ARTICLE
II THE SECURITIES
|
||
SECTION
2.1
|
Form,
Dating and Terms
|
7
|
SECTION
2.2
|
Execution
and Authentication
|
13
|
SECTION
2.3
|
Registrar
and Paying Agent
|
14
|
SECTION
2.4
|
Paying
Agent To Hold Money in Trust
|
15
|
SECTION
2.5
|
Securityholder
Lists
|
15
|
SECTION
2.6
|
Transfer
and Exchange
|
15
|
SECTION
2.7
|
Form
of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors
|
18
|
SECTION
2.8
|
Form
of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S
|
20
|
SECTION
2.9
|
Mutilated,
Destroyed, Lost or Stolen Securities
|
21
|
SECTION
2.10
|
Outstanding
Securities
|
22
|
SECTION
2.11
|
Temporary
Securities
|
22
|
SECTION
2.12
|
Cancellation
|
23
|
SECTION
2.13
|
Payment
of Interest; Defaulted Interest
|
23
|
SECTION
2.14
|
Computation
of Interest
|
24
|
SECTION
2.15
|
CUSIP
and ISIN Numbers
|
24
|
ARTICLE
III COVENANTS
|
||
SECTION
3.1
|
Payment
of Securities
|
24
|
SECTION
3.2
|
Limitation
on Liens
|
25
|
SECTION
3.3
|
Limitation
on Sale Leaseback Transactions
|
26
|
SECTION
3.4
|
Maintenance
of Office or Agency
|
26
|
SECTION
3.5
|
Compliance
Certificate
|
26
|
SECTION
3.6
|
Statement
by Officers as to Default
|
27
|
SECTION
3.7
|
Further
Instruments and Acts
|
27
|
ARTICLE
IV SUCCESSOR COMPANY
|
||
SECTION
4.1
|
Merger,
Consolidation or Sale of All or Substantially All Assets of the
Company
|
27
|
ARTICLE
V REDEMPTION OF SECURITIES
|
||
SECTION
5.1
|
Optional
Redemption
|
27
|
SECTION
5.2
|
Applicability
of Article
|
28
|
SECTION
5.3
|
Election
to Redeem; Notice to Trustee
|
28
|
SECTION
5.4
|
Selection
by Trustee of Securities to Be Redeemed
|
28
|
SECTION
5.5
|
Notice of Redemption | 28 |
SECTION
5.6
|
Deposit of Redemption Price | 29 |
SECTION 5.7 | Securities Payable on Redemption Date | 29 |
SECTION 5.8 | Securities Redeemed in Part | 30 |
ARTICLE VI DEFAULTS AND REMEDIES | ||
SECTION
6.1
|
Events
of Default
|
30
|
SECTION
6.2
|
Acceleration
|
31
|
SECTION
6.3
|
Other
Remedies
|
32
|
SECTION
6.4
|
Waiver
of Past Defaults
|
32
|
SECTION
6.5
|
Control
by Majority
|
32
|
SECTION
6.6
|
Limitation
on Suits
|
32
|
SECTION
6.7
|
Rights
of Holders to Receive Payment
|
33
|
SECTION
6.8
|
Collection
Suit by Trustee
|
33
|
SECTION
6.9
|
Trustee
May File Proofs of Claim
|
33
|
SECTION
6.10
|
Priorities
|
33
|
SECTION
6.11
|
Undertaking
for Costs
|
34
|
ARTICLE
VII TRUSTEE
|
||
SECTION
7.1
|
Duties
of Trustee
|
34
|
SECTION
7.2
|
Rights
of Trustee
|
36
|
SECTION
7.3
|
Individual
Rights of Trustee
|
37
|
SECTION
7.4
|
Trustee’s
Disclaimer
|
37
|
SECTION
7.5
|
Notice
of Defaults
|
37
|
SECTION
7.6
|
Reports
by Trustee to Holders
|
37
|
SECTION
7.7
|
Compensation
and Indemnity
|
37
|
SECTION
7.8
|
Replacement
of Trustee
|
38
|
SECTION
7.9
|
Successor
Trustee by Merger
|
39
|
SECTION
7.10
|
Eligibility;
Disqualification
|
39
|
SECTION
7.11
|
Preferential
Collection of Claims Against Company
|
40
|
ARTICLE
VIII SATISFACTION AND DISCHARGE OF INDENTURE
|
||
SECTION
8.1
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
40
|
SECTION
8.2
|
Legal
Defeasance and Discharge
|
40
|
SECTION
8.3
|
Covenant
Defeasance
|
40
|
SECTION
8.4
|
Conditions
to Legal or Covenant Defeasance
|
41
|
SECTION
8.5
|
Satisfaction
and Discharge of Indenture
|
42
|
SECTION
8.6
|
Survival
of Certain Obligations
|
43
|
SECTION
8.7
|
Acknowledgement
of Discharge by Trustee
|
43
|
SECTION
8.8
|
Application
of Trust Moneys
|
43
|
SECTION
8.9
|
Repayment
to the Company; Unclaimed Money
|
43
|
SECTION
8.10
|
Reinstatement
|
44
|
ARTICLE
IX AMENDMENTS
|
||
SECTION
9.1
|
Without
Consent of Holders
|
44
|
SECTION
9.2
|
With
Consent of Holders
|
44
|
SECTION
9.3
|
Compliance
with Trust Indenture Act
|
45
|
SECTION 9.4 | Revocation and Effect of Consents and Waivers | 45 |
SECTION 9.5 | Notation on or Exchange of Securities | 46 |
SECTION 9.6 | Trustee To Sign Amendments | 46 |
ARTICLE X MISCELLANEOUS | ||
SECTION
10.2
|
Notices
|
46
|
SECTION
10.3
|
Communication
by Holders with other Holders
|
47
|
SECTION
10.4
|
Certificate
and Opinion as to Conditions Precedent
|
47
|
SECTION
10.5
|
Statements
Required in Certificate or Opinion
|
48
|
SECTION
10.6
|
When
Securities Disregarded
|
48
|
SECTION
10.7
|
Rules
by Trustee, Paying Agent and Registrar
|
48
|
SECTION
10.8
|
Legal
Holidays
|
48
|
SECTION
10.9
|
Governing
Law; Waiver of Jury Trial
|
49
|
SECTION
10.10
|
No
Recourse Against Others
|
49
|
SECTION
10.11
|
Successors
|
49
|
SECTION
10.12
|
Multiple
Originals
|
49
|
SECTION
10.13
|
Variable
Provisions
|
49
|
SECTION
10.14
|
Table
of Contents; Headings
|
49
|
SECTION
10.15
|
Force
Majeure
|
49
|
EXHIBIT
A
|
Form
of the Initial Security and Additional Security
|
|
EXHIBIT
B
|
Form
of the Exchange Security
|
TIA
Section
|
Indenture Section | ||
310
|
(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
||
(a)(3)
|
N.A.
|
||
(a)(4)
|
N.A.
|
||
(b)
|
7.8;
7.10
|
||
(c)
|
N.A.
|
||
311
|
(a)
|
7.11
|
|
(b)
|
7.11
|
||
(c)
|
N.A.
|
||
312
|
(a)
|
2.5
|
|
(b)
|
10.3
|
||
(c)
|
10.3
|
||
313
|
(a)
|
7.6
|
|
(b)(1)
|
N.A.
|
||
(b)(2)
|
7.6
|
||
(c)
|
7.6
|
||
(d)
|
7.6
|
||
314
|
(a)
|
3.5;
10.2; 10.5
|
|
(b)
|
N.A.
|
||
(c)(1)
|
10.4
|
||
(c)(2)
|
10.4
|
||
(c)(3)
|
N.A.
|
||
(d)
|
N.A.
|
||
(e)
|
10.5
|
||
315
|
(a)
|
7.1
|
|
(b)
|
7.5;
10.2
|
||
(c)
|
7.1
|
||
(d)
|
7.1
|
||
(e)
|
6.11
|
||
316
|
(a)(last
sentence)
|
10.6
|
|
(a)(1)(A)
|
6.5
|
||
(a)(1)(B)
|
6.4
|
||
(a)(2)
|
N.A.
|
||
(b)
|
6.7
|
||
317
|
(a)(1)
|
6.8
|
|
(a)(2)
|
6.9
|
||
(b)
|
2.4
|
||
318
|
(a)
|
10.1
|
Term
|
|
Defined in Section
|
|
“Agent
Members”
|
|
2.1(d) | |
“Authenticating
Agent”
|
|
2.2 | |
“Bankruptcy
Law”
|
|
6.1 | |
“Company
Order”
|
|
2.2 | |
“Corporate
Trust Office”
|
|
3.4 | |
“Covenant
Defeasance”
|
|
8.3 | |
“Custodian”
|
|
6.1 | |
“Defaulted
Interest”
|
|
2.13 | |
“Event
of Default”
|
|
6.1 | |
“Exchange
Global Note”
|
|
2.1(a) |
“Global
Securities”
|
|
2.1(a) | |
“IAI”
|
|
2.1(a) | |
“Institutional
Accredited Investor Global Note”
|
|
2.1(a) | |
“Legal
Defeasance”
|
|
8.2 | |
“Note
Register”
|
|
2.3 | |
“Notice
of Default”
|
|
6.1 | |
“Paying
Agent”
|
|
2.3 | |
“Private
Placement Legend”
|
|
2.1(c) | |
“Registrar”
|
|
2.3 | |
“Regulation
S Global Note”
|
|
2.1(a) | |
“Regulation
S Legend”
|
|
2.1(c) | |
“Resale
Restriction Termination Date”
|
|
2.6 | |
“Rule
144A Global Note”
|
|
2.1(a) | |
“Special
Interest Payment Date”
|
|
2.13 | |
“Special
Record Date”
|
|
2.13 | |
“Successor
Company”
|
|
4.1 |
Name:
|
Address: |
Taxpayer ID Number: |
TRANSFEREE:
|
||
BY:
|
|
Re:
|
The
Black & Decker Corporation
4
3/4% Senior Notes Due 2014 (the
“Securities”)
|
Very
truly yours,
|
|
[Name
of Transferor]
|
|
By:
|
|
Authorized
Signature
|
THE BLACK & DECKER CORPORATION | |||
|
By:
|
/s/ Michael D. Mangan | |
Michael D. Mangan | |||
Senior Vice President and Chief Financial Officer | |||
THE BANK OF NEW YORK, as Trustee | |||
|
By:
|
/s/ Geovanni Barris | |
Geovanni Barris | |||
Vice President | |||
No.
___
|
Principal
Amount $__________, as revised by the Schedule of Increases and Decreases
in Global Security attached hereto
|
CUSIP
NO. ____________
|
|
ISIN: ____________
|
THE
BLACK & DECKER CORPORATION
|
|
By:
|
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
|
||||
The
Bank of New York,
as
Trustee, certifies that this
is
one of the Securities referred
to
in the Indenture.
|
||||
By
|
||||
Authorized
Signatory
|
Date: October
__, 2004
|
|
o
|
100%
of the principal amount of the Securities to be redeemed;
or
|
|
o
|
the
sum of the present values of the remaining scheduled payments of principal
of and interest on the Securities to be redeemed, exclusive of interest
accrued to the redemption date, discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined below), plus 15 basis
points as calculated by an Independent Investment
Banker;
|
|
o
|
the
yield, under the heading that represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication that is
published weekly by the Board of Governors of the Federal Reserve System
and that establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the
applicable maturity date, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined
and the Adjusted Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month);
or
|
|
o
|
if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
|
__
1
|
acquired
for the undersigned’s own account, without transfer;
or
|
__
2
|
transferred
to the Company; or
|
__
3
|
transferred
pursuant to and in compliance with Rule 144A under the Securities Act of
1933, as amended (the “Securities Act”);
or
|
__
4
|
transferred
pursuant to an effective registration statement under the Securities Act;
or
|
__
5
|
transferred
pursuant to and in compliance with Regulation S under the Securities Act;
or
|
__
6
|
transferred
to an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act), that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which letter appears as Section 2.7 of the Indenture);
or
|
__
7
|
transferred
pursuant to another available exemption from the registration requirements
of the Securities Act.
|
Signature
|
||
Signature
Guarantee:
|
||
(Signature
must be guaranteed)
|
Signature
|
|
Date
of
Exchange
|
Amount
of
decrease
in
Principal
Amount
of
this Global
Security
|
Amount
of
increase
in
Principal
Amount
of
this Global
Security
|
Principal
Amount
of
this Global
Security
following
such
decrease or
increase
|
Signature
of
authorized
signatory
of
Trustee
or
Securities
Custodian
|
||||
No.
___
|
Principal
Amount $__________, as revised by the Schedule of Increases and Decreases
in Global Security attached hereto
|
CUSIP
NO. ____________
|
|
ISIN: ____________
|
THE
BLACK & DECKER CORPORATION
|
|
By:
|
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
|
||||
The
Bank of New York,
as
Trustee, certifies that this
is
one of the Securities referred
to
in the Indenture.
|
||||
By
|
||||
Authorized
Signatory
|
Date: October
__, 2004
|
|
o
|
100%
of the principal amount of the Securities to be redeemed;
or
|
|
o
|
the
sum of the present values of the remaining scheduled payments of principal
of and interest on the Securities to be redeemed, exclusive of interest
accrued to the redemption date, discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined below), plus 15 basis
points as calculated by an Independent Investment
Banker;
|
|
o
|
the
yield, under the heading that represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication
that is published weekly by the Board of Governors of the Federal Reserve
System and that establishes yields on actively traded U.S. Treasury
securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within
three months before or after the applicable maturity date, yields for the
two published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month); or
|
|
o
|
if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
|
Date
of
Exchange
|
Amount
of
decrease
in
Principal
Amount
of
this Global
Security
|
Amount
of
increase
in
Principal
Amount
of
this Global
Security
|
Principal
Amount
of
this Global
Security
following
such
decrease or
increase
|
Signature
of
authorized
signatory
of
Trustee
or
Securities
Custodian
|
||||
Page |
ARTICLE
I
Definitions
and Incorporation by Reference
|
||
SECTION
1.1.
|
Definitions
|
1
|
SECTION
1.2.
|
Other
Definitions
|
5
|
SECTION
1.3.
|
Incorporation
by Reference of Trust Indenture Act
|
6
|
SECTION
1.4.
|
Rules
of Construction
|
6
|
ARTICLE
II
The
Securities
|
||
SECTION
2.1.
|
Form,
Dating and Terms
|
7
|
SECTION
2.2.
|
Execution
and Authentication
|
15
|
SECTION
2.3.
|
Registrar
and Paying Agent
|
17
|
SECTION
2.4.
|
Paying
Agent To Hold Money in Trust
|
17
|
SECTION
2.5.
|
Securityholder
Lists
|
18
|
SECTION
2.6.
|
Transfer
and Exchange
|
18
|
SECTION
2.7.
|
Form
of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors
|
21
|
SECTION
2.8.
|
Form
of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S
|
23
|
SECTION
2.9.
|
Mutilated,
Destroyed, Lost or Stolen Securities
|
24
|
SECTION
2.10.
|
Outstanding
Securities
|
25
|
SECTION
2.11.
|
Temporary
Securities
|
25
|
SECTION
2.12.
|
Cancellation
|
26
|
SECTION
2.13.
|
Payment
of Interest; Defaulted Interest
|
26
|
SECTION
2.14.
|
Computation
of Interest
|
27
|
SECTION
2.15.
|
CUSIP
and ISIN Numbers
|
27
|
ARTICLE
III
Covenants
|
||
SECTION
3.1.
|
Payment
of Securities
|
27
|
SECTION
3.2.
|
Limitation
on Liens
|
28
|
SECTION
3.3.
|
Limitation
on Sale Leaseback Transactions
|
29
|
SECTION
3.4.
|
Maintenance
of Office or Agency
|
29
|
SECTION
3.5.
|
Compliance
Certificate
|
30
|
SECTION
3.6.
|
Statement
by Officers as to Default
|
30
|
SECTION
3.7.
|
Further
Instruments and Acts
|
30
|
ARTICLE
IV
Successor
Company
|
||
SECTION
4.1.
|
Merger,
Consolidation or Sale of All or Substantially All Assets of the
Company
|
30
|
ARTICLE
V
Redemption
of Securities
|
||
SECTION
5.1.
|
Optional
Redemption
|
31
|
SECTION
5.2.
|
Applicability
of Article
|
31
|
SECTION
5.3.
|
Election
to Redeem; Notice to Trustee
|
31
|
SECTION
5.4.
|
Selection
by Trustee of Securities to Be Redeemed
|
31
|
SECTION
5.5.
|
Notice
of Redemption
|
32
|
SECTION
5.6.
|
Deposit
of Redemption Price
|
33
|
SECTION
5.7.
|
Securities
Payable on Redemption Date
|
33
|
SECTION
5.8.
|
Securities
Redeemed in Part
|
33
|
ARTICLE
VI
Defaults
and Remedies
|
||
SECTION
6.1.
|
Events
of Default
|
33
|
SECTION
6.2.
|
Acceleration
|
35
|
SECTION
6.3.
|
Other
Remedies
|
35
|
SECTION
6.4.
|
Waiver
of Past Defaults
|
35
|
SECTION
6.5.
|
Control
by Majority
|
36
|
SECTION
6.6.
|
Limitation
on Suits
|
36
|
SECTION
6.7.
|
Rights
of Holders to Receive Payment
|
36
|
SECTION
6.8.
|
Collection
Suit by Trustee
|
36
|
SECTION
6.9.
|
Trustee
May File Proofs of Claim
|
37
|
SECTION
6.10.
|
Priorities
|
37
|
SECTION
6.11.
|
Undertaking
for Costs
|
37
|
ARTICLE
VII
Trustee
|
||
SECTION
7.1.
|
Duties
of Trustee
|
37
|
SECTION
7.2.
|
Rights
of Trustee
|
39
|
SECTION
7.3.
|
Individual
Rights of Trustee
|
40
|
SECTION
7.4.
|
Trustee’s
Disclaimer
|
40
|
SECTION
7.5.
|
Notice
of Defaults
|
40
|
SECTION
7.6.
|
Reports
by Trustee to Holders
|
40
|
SECTION
7.7.
|
Compensation
and Indemnity
|
41
|
SECTION
7.8.
|
Replacement
of Trustee
|
42
|
SECTION
7.9.
|
Successor
Trustee by Merger
|
42
|
SECTION
7.10.
|
Eligibility;
Disqualification
|
43
|
SECTION
7.11.
|
Preferential
Collection of Claims Against Company
|
43
|
ARTICLE
VIII
Satisfaction
and Discharge of Indenture
|
||
SECTION
8.1.
|
Option
To Effect Legal Defeasance or Covenant Defeasance
|
43
|
SECTION
8.2.
|
Legal
Defeasance and Discharge
|
43
|
SECTION
8.3.
|
Covenant
Defeasance
|
44
|
SECTION
8.4.
|
Conditions
to Legal or Covenant Defeasance
|
44
|
SECTION
8.5.
|
Satisfaction
and Discharge of Indenture
|
46
|
SECTION
8.6.
|
Survival
of Certain Obligations
|
46
|
SECTION
8.7.
|
Acknowledgment
of Discharge by Trustee
|
46
|
SECTION
8.8.
|
Application
of Trust Moneys
|
47
|
SECTION
8.9.
|
Repayment
to the Company; Unclaimed Money
|
47
|
SECTION
8.10.
|
Reinstatement
|
47
|
ARTICLE
IX
Amendments
|
||
SECTION
9.1.
|
Without
Consent of Holders
|
48
|
SECTION
9.2.
|
With
Consent of Holders
|
48
|
SECTION
9.3.
|
Compliance
with Trust Indenture Act
|
49
|
SECTION
9.4.
|
Revocation
and Effect of Consents and Waivers
|
49
|
SECTION
9.5.
|
Notation
on or Exchange of Securities
|
50
|
SECTION
9.6.
|
Trustee
To Sign Amendments
|
50
|
ARTICLE
X
Miscellaneous
|
||
SECTION
10.1.
|
Trust
Indenture Act Controls
|
50
|
SECTION
10.2.
|
Notices
|
50
|
SECTION
10.3.
|
Communication
by Holders with other Holders
|
51
|
SECTION
10.4.
|
Certificate
and Opinion as to Conditions Precedent
|
51
|
SECTION
10.5.
|
Statements
Required in Certificate or Opinion
|
51
|
SECTION
10.6.
|
When
Securities Disregarded
|
52
|
SECTION
10.7.
|
Rules
by Trustee, Paying Agent and Registrar
|
52
|
SECTION
10.8.
|
Legal
Holidays
|
52
|
SECTION
10.9.
|
GOVERNING
LAW
|
52
|
SECTION
10.10.
|
No
Recourse Against Others
|
52
|
SECTION
10.11.
|
Successors
|
53
|
SECTION
10.12.
|
Multiple
Originals
|
53
|
SECTION
10.13.
|
Variable
Provisions
|
53
|
SECTION
10.14.
|
Table
of Contents; Headings
|
53
|
EXHIBIT A | Form of the Initial Security |
EXHIBIT B | Form of the Exchange Security |
Term
|
Defined
in Section
|
|
“Agent
Member”
|
2.1(d)
|
|
“Authenticating
Agent”
|
2.2
|
|
“Bankruptcy
Law”
|
6.1
|
|
“Company
Order”
|
2.2
|
|
“Corporate
Trust Office”
|
3.4
|
|
“Covenant
Defeasance”
|
8.3
|
Term | Defined in Section | |
“Custodian”
|
6.1
|
|
“Defaulted
Interest”
|
2.13
|
|
“Event
of Default”
|
6.1
|
|
“Exchange
Global Note”
|
2.1(a)
|
|
“Global
Securities”
|
2.1(a)
|
|
“IAI”
|
2.1(a)
|
|
“Institutional
Accredited Investor Global Note”
|
2.1(a)
|
|
“Legal
Defeasance”
|
8.2
|
|
“Paying
Agent”
|
2.3
|
|
“Private
Placement Legend”
|
2.1(c)
|
|
“Registrar”
|
2.3
|
|
“Regulation S
Global Note”
|
2.1(a)
|
|
“Regulation S
Legend”
|
2.1(c)
|
|
“Resale
Restriction Termination Date”
|
2.6
|
|
“Rule 144A
Global Note”
|
2.1(a)
|
|
“Special
Interest Payment Date”
|
2.13
|
|
“Special
Record Date”
|
2.13
|
|
“Successor
Company”
|
4.1
|
THE
BLACK & DECKER CORPORATION,
|
|||
|
By:
|
/s/ MICHAEL D. MANGAN | |
Name: Michael D. Mangan | |||
Title:
Senior Vice President and
Chief
Financial
Officer
|
|||
THE
BANK OF NEW YORK, as Trustee,
|
|||
|
By:
|
/s/ GEOVANNI BARRIS | |
Name: Geovanni Barris | |||
Title:
Vice President
|
|||
CUSIP
NO. ______________
|
ISIN:
______________
|
THE
BLACK & DECKER CORPORATION,
|
|||
|
By:
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
|
|
The
Bank of New York,
as
Trustee, certifies that this
is
one of the Securities referred to in the Indenture.
|
|
By
|
|||
|
Authorized
Signatory
|
Date: June
__, 2001
|
|
●
|
100%
of the principal amount of the Securities to be redeemed;
and
|
|
●
|
the
sum of the present values of the remaining scheduled payments
thereon consisting of principal and interest, exclusive of
interest accrued to the date of redemption, at the rate in effect on the
date of calculation of the redemption price, discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Rate (as defined below),
plus 25 basis points;
|
|
●
|
the
average of four Reference Treasury Dealer Quotations obtained by
the Trustee for that redemption date, after excluding the
highest and lowest of such reference Treasury Dealer
Quotations; or . if the Trustee is unable to obtain
at least four such Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations obtained by the
Trustee.
|
|
●
|
the
yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently
published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury
securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the applicable maturity
date, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall
be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis,
rounding to the nearest month); or
|
|
●
|
if
such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption
date.
|
Date:
|
Your
Signature:
|
Signature
Guarantee:
|
|
(Signature
must be guaranteed)
|
Sign
exactly as your name
appears
on the
other side of this Security.
|
[_] 1
|
acquired
for the undersigned’s own account, without transfer;
or
|
[_] 2
|
transferred
to the Company; or
|
[_] 3
|
transferred
pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the “Securities Act”);
or
|
[_] 4
|
transferred
pursuant to an effective registration statement under the Securities
Act; or
|
[_] 5
|
transferred
pursuant to and in compliance with Regulation S under the
Securities Act; or
|
[_] 6
|
transferred
to an institutional “accredited investor” (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act),
that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter appears
as
Section 2.7
of the Indenture); or
|
[_] 7
|
transferred
pursuant to another available exemption from the registration requirements
of the Securities Act of 1933.
|
Signature
|
|
||
Signature
Guarantee:
|
|||
(Signature
must be guaranteed)
|
Signature
|
|
|
Dated: |
Date
of
Exchange
|
Amount
of decrease in
Principal
Amount of this
Global
Security
|
Amount
of increase in
Principal
Amount of
this
Global Security
|
Principal
Amount of
this
Global Security
following
such
decrease
or increase
|
Signature
of
authorized
signatory
of
Trustee or
Securities
Custodian
|
No.
|
Principal
Amount $____________,
as
revised by the Schedule of
Increases
and Decreases in Global
Security
attached hereto
|
CUSIP
NO. _____________
ISIN:
_____________
|
THE
BLACK & DECKER CORPORATION
|
|||
|
By:
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
|
|
The
Bank of New York,
as
Trustee, certifies that this
is
one of the Securities referred to in the Indenture.
|
|
By
|
|||
|
Authorized
Signatory
|
Date: June
__, 2001
|
|
●
|
100%
of the principal amount of the Securities to be redeemed;
and
|
|
●
|
the
sum of the present values of the remaining scheduled
payments thereon consisting of principal and interest,
exclusive of interest accrued to the date of redemption, at the
rate in effect on the date of calculation of the redemption
price, discounted to the date of redemption on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the applicable Treasury Rate (as defined below),
plus 25 basis points;
|
|
●
|
the
average of four Reference Treasury Dealer Quotations obtained by
the Trustee for that redemption date, after excluding the
highest and lowest of such reference Treasury Dealer
Quotations; or
|
|
●
|
if
the Trustee is unable to obtain at least four such Reference
Treasury Dealer Quotations, the average of all Reference
Treasury Dealer Quotations obtained by the
Trustee.
|
|
●
|
the
yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently
published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury
Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue
(if
no maturity is within three months before or after the
applicable maturity date, yields for the two published
maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury
Rate shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month);
or
|
|
●
|
if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
|
Date:
|
Your
Signature:
|
Signature
Guarantee:
|
|
(Signature
must be guaranteed)
|
Sign
exactly as your name
appears
on the
other side of this Security.
|
Date
of
Exchange
|
Amount
of decrease in
Principal
Amount of this
Global
Security
|
Amount
of increase in
Principal
Amount of
this
Global Security
|
Principal
Amount of
this
Global Security
following
such decrease
or
increase
|
Signature
of authorized
signatory
of Trustee or
Securities
Custodian
|
SECTION
1.1.
|
Definitions
|
1
|
SECTION
1.2.
|
Incorporation
by Reference of TIA
|
7
|
SECTION
1.3.
|
Rules
of Construction
|
8
|
SECTION
2.1.
|
Form
and Dating
|
8
|
SECTION
2.2.
|
Execution
and Authentication
|
9
|
SECTION
2.3.
|
Exchange
Agent and Paying Agent
|
10
|
SECTION
2.4.
|
Paying
Agent To Hold Assets in Trust
|
10
|
SECTION
2.5.
|
List
of Holders
|
10
|
SECTION
2.6.
|
Transfer
and Exchange
|
11
|
SECTION
2.7.
|
Replacement
Notes
|
14
|
SECTION
2.8.
|
Outstanding
Notes
|
14
|
SECTION
2.9.
|
Treasury
Notes
|
15
|
SECTION
2.10.
|
Temporary
Notes
|
15
|
SECTION
2.11.
|
Cancellation
|
15
|
SECTION
2.12.
|
Defaulted
Interest
|
16
|
SECTION
2.13.
|
CUSIP
and CINS Number
|
16
|
SECTION
2.14.
|
Deposit
of Moneys
|
16
|
SECTION
2.15.
|
Certain
Matters Relating to Global Notes.
|
16
|
SECTION
3.1.
|
Optional
Redemption
|
17
|
SECTION
3.2.
|
Election
to Redeem; Notice to Trustee
|
17
|
SECTION
3.3.
|
Selection
by Trustee of Notes to Be Redeemed
|
17
|
SECTION
3.4.
|
Notice
of Redemption
|
17
|
SECTION
3.5.
|
Effect
of Notice of Redemption
|
19
|
SECTION
3.6.
|
Deposit
of Redemption Price
|
19
|
SECTION
3.7.
|
Notes
Redeemed in Part
|
19
|
SECTION
3.8.
|
Applicability
of This Article
|
19
|
SECTION
4.1.
|
Payment
of Notes
|
20
|
SECTION
4.2.
|
Maintenance
of Office or Agency
|
20
|
SECTION
4.3.
|
Limitation
on Liens
|
21
|
SECTION
4.4.
|
Limitation
on Sale-Leaseback Transactions
|
21
|
SECTION
4.5.
|
No
Lien Created, etc
|
22
|
SECTION
4.6.
|
Compliance
Certificate; Notice of Default
|
22
|
SECTION
4.7.
|
Reports
|
22
|
SECTION
4.8.
|
Payment
of Certain Non-Income Taxes and Similar Charges
|
22
|
SECTION
5.1.
|
Merger,
Consolidation or Sale of All or Substantially All Assets of the
Company
|
23
|
SECTION
5.2.
|
Merger,
Consolidation or Sale of All or Substantially All Assets of the
Guarantor
|
23
|
SECTION
6.1.
|
Events
of Default
|
23
|
SECTION
6.2.
|
Acceleration
|
25
|
SECTION
6.3.
|
Other
Remedies
|
25
|
SECTION
6.4.
|
Waiver
of Past Defaults
|
25
|
SECTION
6.5.
|
Control
by Majority
|
25
|
SECTION
6.6.
|
Limitation
on Suits
|
25
|
SECTION
6.7.
|
Rights
of Holders to Receive Payment
|
26
|
SECTION
6.8.
|
Collection
Suit by Trustee
|
26
|
SECTION
6.9.
|
Trustee
May File Proofs of Claim
|
26
|
SECTION
6.10.
|
Priorities
|
26
|
SECTION
6.11.
|
Undertaking
for Costs
|
27
|
SECTION
7.1.
|
Duties
of Trustee
|
27
|
SECTION
7.2.
|
Rights
of Trustee, Subject to Section 7.1:
|
28
|
SECTION
7.3.
|
Individual
Rights of Trustee
|
29
|
SECTION
7.4.
|
Trustee’s
Disclaimer
|
29
|
SECTION
7.5.
|
Notice
of Default
|
29
|
SECTION
7.6.
|
Report
by Trustee to Holders
|
30
|
SECTION
7.7.
|
Compensation
and Indemnity
|
30
|
SECTION
7.8.
|
Replacement
of Trustee
|
31
|
SECTION
7.9.
|
Successor
Trustee by Merger, Etc.
|
32
|
SECTION
7.10.
|
Eligibility;
Disqualification; Corporate Trust Required; Conflicting
Interest
|
32
|
SECTION
7.11.
|
Preferential
Collection of Claims Against Company
|
33
|
SECTION
7.12.
|
Authenticating
Agents
|
33
|
SECTION
8.1.
|
Option
To Effect Legal Defeasance or Covenant Defeasance
|
35
|
SECTION
8.2.
|
Legal
Defeasance and Discharge
|
35
|
SECTION
8.3.
|
Covenant
Defeasance
|
35
|
SECTION
8.4.
|
Conditions
to Legal or Covenant Defeasance
|
36
|
SECTION
8.5.
|
Satisfaction
and Discharge of Indenture
|
37
|
SECTION
8.6.
|
Survival
of Certain Obligations
|
38
|
SECTION
8.7.
|
Acknowledgment
of Discharge by Trustee
|
38
|
SECTION
8.8.
|
Application
of Trust Moneys
|
38
|
SECTION
8.9.
|
Repayment
to the Company; Unclaimed Money
|
39
|
SECTION
8.10.
|
Reinstatement
|
39
|
SECTION
9.1.
|
Without
Consent of Holders of Notes
|
39
|
SECTION
9.2.
|
With
Consent of Holders of Notes
|
40
|
SECTION
9.3.
|
Compliance
with TIA
|
41
|
SECTION
9.4.
|
Revocation
and Effect of Consents
|
41
|
SECTION
9.5.
|
Notation
on or Exchange of Notes
|
41
|
SECTION
9.6.
|
Trustee
To Sign Amendments, Etc.
|
41
|
SECTION
9.7.
|
Effect
of Supplemental Indentures
|
42
|
SECTION
10.1.
|
Guarantees
|
42
|
SECTION
10.2.
|
Successors
and Assigns
|
43
|
SECTION
10.3.
|
No
Waiver
|
44
|
SECTION
10.4.
|
Modification
|
44
|
SECTION
11.1.
|
Purposes
of Meetings
|
44
|
SECTION
11.2.
|
Place
of Meetings
|
44
|
SECTION
11.3.
|
Call
and Notice of Meetings
|
44
|
SECTION
11.4.
|
Voting
at Meetings
|
45
|
SECTION
11.5.
|
Voting
Rights, Conduct and Adjournment
|
45
|
SECTION
11.6.
|
Revocation
of Consent by Holders
|
45
|
SECTION
11.7.
|
No
Delay of Rights by Meeting
|
46
|
SECTION
12.1.
|
TIA
Controls
|
46
|
SECTION
12.2.
|
Notices
|
46
|
SECTION
12.3.
|
Notice
to Holders
|
47
|
SECTION
12.4.
|
Compliance
Certificates and Opinions
|
48
|
SECTION
12.5.
|
Form
of Documents Delivered to Trustee
|
48
|
SECTION
12.6.
|
Rules
by Trustee, Paying Agent, Exchange Agent
|
48
|
SECTION
12.7.
|
Non-Business
Day
|
49
|
SECTION
12.8.
|
Governing
Law and Submission to Jurisdiction
|
49
|
SECTION
12.9.
|
No
Adverse Interpretation of Other Agreements
|
49
|
SECTION
12.10.
|
Immunity
of Incorporators, Stockholders, Employees, Officers and
Directors
|
49
|
SECTION
12.11.
|
Successors
and Assigns
|
49
|
SECTION
12.12.
|
Counterpart
Originals
|
49
|
SECTION
12.13.
|
Severability
|
49
|
SECTION
12.14.
|
Table
of Contents, Headings, etc.
|
49
|
SECTION
12.15.
|
Benefits
of Indenture
|
49
|
SECTION
12.16.
|
Language
of Notices, etc.
|
50
|
SIGNATURES
|
50
|
Exhibit
A
|
–
|
Form
of Tranche A Global Note
|
Exhibit
B
|
–
|
Form
of Tranche A Definitive Note
|
Exhibit
C
|
–
|
Form
of Tranche B Global Note
|
Exhibit
D
|
–
|
Form
of Tranche B Definitive Note
|
Exhibit
E
|
–
|
Form
of Transfer Certificate -- U.S. Global Note to Regulation S Global Note
During the Restricted Period
|
Exhibit
F
|
–
|
Form
of Transfer Certificate -- U.S. Global Note to Regulation S Global Note
After the Restricted Period
|
Exhibit
G-1
|
–
|
Form
of Transfer Certificate -- Regulation S Global Note to U.S. Global Note
During the Restricted Period
|
Exhibit
G-2
|
–
|
Form
of Transfer Certificate -- Regulation S Global Notes to U.S. Global Note
After the Expiration of the Restricted Period
|
Exhibit
H
|
–
|
Form
of Exchange Certificate -- Notes Acquired Pursuant to Rule
144A
|
Exhibit
I
|
–
|
Form
of Exchange Certificate -- Notes Acquired Pursuant to Regulation
S
|
TIA
Section |
Indenture
Section
|
|
310
|
(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
|
(a)(3)
|
NA
|
|
(a)(4)
|
NA
|
|
(a)(5)
|
7.8;
7.10
|
|
(b)
|
7.3;
7.10
|
|
(c)
|
NA
|
|
311
|
(a)
|
7.11
|
(b)
|
7.11
|
|
(c)
|
NA
|
|
312
|
(a)
|
2.5
|
(b)
|
14.3
|
|
(c)
|
14.3
|
|
313
|
(a)
|
7.6
|
(b)(1)
|
NA
|
|
(b)(2)
|
7.6
|
|
(c)
|
7.6;
|
|
(d)
|
7.6
|
|
314
|
(a)
|
4.8;
4.10; 14.2;
|
14.4
|
||
(b)
|
NA
|
|
(c)(1)
|
7.2;
14.4
|
|
(c)(2)
|
7.2;
14.4
|
|
(c)(3)
|
NA
|
|
(d)
|
NA
|
|
(e)
|
14.5
|
|
(f)
|
NA
|
|
315
|
(a)
|
7.1(c)
|
(b)
|
7.5;
14.2
|
|
(c)
|
7.1(a)
|
|
(d)
|
6.5;
|
|
7.1(c)
|
||
(e)
|
6.11
|
|
316
|
(a)(last
sentence)
|
2.9
|
(a)(1)(A)
|
6.5
|
|
(a)(1)(B)
|
6.4
|
|
(a)(2)
|
NA
|
|
(b)
|
6.7
|
|
317
|
(a)(1)
|
6.8
|
(a)(2)
|
6.9
|
|
(b)
|
2.4
|
|
318
|
(a)
|
14.1
|
(c)
|
14.1
|
By:
|
|
As
Authenticating Agent
|
By:
|
|
[SEAL]
|
BLACK
& DECKER HOLDINGS INC.,
|
as
Issuer
|
Attest: |
/s/
Norman R. Judd
|
By: |
/s/
Mark M. Rothleitner
|
||
Title:
Norman R. Judd
|
Name:
Mark M. Rothleitner
|
||||
|
|
[SEAL]
|
THE
BLACK & DECKER CORPORATION,
|
as
Guarantor
|
Attest: |
/s/
Lucy A. Bosley
|
By: |
/s/
Thomas M. Schoewe
|
||
Title:
Asst.
Secretary
|
Name:
Thomas M. Schoewe
|
||||
|
Title:
Senior Vice President and
Chief
Financial Officer
|
THE FIRST NATIONAL BANK OF CHICAGO, | |||
as
Trustee
|
|||
|
By:
|
/s/ Michael Pinzon | |
Name: Michael Pinzon | |||
Title: Trust Officer | |||
|
(i) a
Borrower may not select any Interest Period which ends after the
Termination Date or, if the Advances have been converted to a term loan
pursuant to Section 2.07(a) prior to such selection, that ends after the
Maturity Date;
|
|
(ii) whenever
the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day;
provided
that
if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business
Day;
|
|
(iii) any
Interest Period which begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to
clause (iv) below, end on the last Business Day of a calendar
month;
|
|
(iv) (A)
any Interest Period which would otherwise end after the Termination Date
shall end on the Termination Date or (B) if the Advances have been
converted to a term loan pursuant to Section 2.07(a) prior to such
selection, any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity
Date;
|
|
(v) if,
upon the expiration of any Interest Period with respect to a Borrowing, a
Borrower has failed to elect a new Interest Period to be applicable to
such Advances as provided above, such Borrower (x) if such Borrower
is the Company, shall be deemed to have elected to convert such Advances
into a Base Rate Advance effective as of the expiration date of such
current Interest Period and (y) if such Borrower is a Designated
Subsidiary, shall be deemed to have elected a new Interest Period of 1
month to be applicable to such Advances;
and
|
|
(vi) Interest
Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Borrowing shall be of the same
duration.
|
|
(i) were
the responsibility of the Company or a member of its ERISA Controlled
Group at any time within the five years immediately preceding the date
hereof,
|
|
(ii) are
currently the responsibility of the Company or a member of its ERISA
Controlled Group, or
|
|
(iii) hereafter
become the responsibility of the Company or a member of its ERISA
Controlled Group, including any such plans as may have been, or may
hereafter be, terminated for whatever
reason.
|
STANLEY
BLACK & DECKER, INC.
|
|||
|
By
|
/s/ Craig A. Douglas | |
Name: Craig A. Douglas | |||
Title: VP & Treasurer | |||
THE
BLACK & DECKER CORPORATION, as Subsidiary Guarantor
|
|||
|
By
|
/s/ Mark Rothleitner | |
Name: Mark Rothleitner | |||
Title: Assistant Treasurer | |||
CITIBANK,
N.A.,
as Administrative Agent and as Lender
|
|||
|
By
|
/s/ Carolyn Kee | |
Name: Carolyn Kee | |||
Title: Vice President | |||
BANK
OF AMERICA, N.A.
|
|||
|
By
|
/s/ Jeffrey J. McLaughlin | |
Name: Jeffrey J. McLaughlin | |||
Title: SVP | |||
J.P. MORGAN CHASE BANK,
N.A.
|
|||
|
By
|
/s/ Anthony W. White | |
Name: Anthony W. White | |||
Title: Vice President | |||
BARCLAYS BANK
PLC
|
|||
|
By
|
/s/ Kevin Cullen | |
Name: Kevin Cullen | |||
Title: Director | |||
BNP
PARIBAS
|
|||
|
By
|
/s/ Curt Price | |
Name: Curt Price | |||
Title: Managing Director | |||
By | /s/ Fik Durmus | ||
Name: Fik Durmus | |||
Title: Director | |||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | |||
|
By:
|
/s/ John D. Toronto | |
Name: John D. Toronto | |||
Title: Director | |||
By: | /s/ Vipul Dhadda | ||
Name: Vipul Dhadda | |||
Title: Associate |
GOLDMAN
SACHS BANK USA
|
|||
|
By
|
/s/ Mark Walton | |
Name: Mark Walton | |||
Title: Authorized Signatory | |||
UBS LOAN FINANCE LLC | |||
|
By:
|
/s/ Irja R. Otsa | |
Name: Irja R. Otsa | |||
Title: Associate Director | |||
By: | /s/ Mary E. Evans | ||
Name: Mary E. Evans | |||
Title: Associate Director |
THE BANK OF NEW YORK
MELLON
|
|||
|
By
|
/s/ Donald G. Cassidy, Jr. | |
Name: Donald G. Cassidy, Jr. | |||
Title: Managing Director | |||
HSBC BANK USA, NATIONAL
ASSOCIATION
|
|||
|
By
|
/s/ Manuel Burgue ño | |
Name: Manuel Burgue ño | |||
Title: Vice President, Relationship Manager | |||
MORGAN STANLEY BANK,
N.A.
|
|||
|
By
|
/s/ Melissa James | |
Name: Melissa James | |||
Title: Authorized Signatory | |||
THE BANK OF TOKYO-MITSUBISHI
UFJ, LTD.
|
|||
|
By
|
/s/ Maria Iarriccio | |
Name: Maria Iarriccio | |||
Title: Authorized Signatory | |||
ING BANK N.V., DUBLIN BRANCH | |||
|
By:
|
/s/ Padraig Matthews | |
Name: Padraig Matthews | |||
Title: Vice President | |||
By: | /s/ Aidan Neill | ||
Name: Aidan Neill | |||
Title: Director |
ROYAL
BANK OF CANADA
|
|||
|
By
|
/s/ Dustin Craven | |
Name: Dustin Craven | |||
Title: Authorized Signatory | |||
THE
BANK OF NOVA SCOTIA
|
|||
|
By
|
/s/ Todd Meller | |
Name: Todd Meller | |||
Title: Managing Director | |||
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES | |||
|
By:
|
/s/ Robert S. Taylor, Jr. | |
Name: Robert S. Taylor, Jr. | |||
Title: Senior Vice President | |||
By: | /s/ Sandy Bau | ||
Name: Sandy Bau | |||
Title: Assistant Treasurer |
THE
NORTHERN TRUST COMPANY
|
|||
|
By
|
/s/ Peter J. Hallan | |
Name: Peter J. Hallan | |||
Title: Vice President | |||
RBS
CITIZENS, N.A.
|
|||
|
By
|
/s/ Jeff Lynch | |
Name: Jeff Lynch | |||
Title: Senior Vice President | |||
MIZUHO
CORPORATE BANK (USA)
|
|||
|
By
|
/s/ David Lim | |
Name: David Lim | |||
Title: Senior Vice Presiden | |||
PNC
BANK, NATIONAL ASSOCIATION
|
|||
|
By
|
/s/ Denise D. Killen | |
Name: Denise D. Killen | |||
Title: Senior Vice President | |||
INTESA SANPAOLO SPA | |||
|
By:
|
/s/ John J. Michalisin | |
Name: John J. Michalisin | |||
Title: First Vice President | |||
By: | /s/ Francesco Di Mario | ||
Name: Francesco Di Mario | |||
Title: First Vice President & Credit Manager |
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) | |||
|
By:
|
/s/ Simon Wakefield | |
Name: Simon Wakefield | |||
Title: Global Head of Acquisition Finance | |||
By: | /s/ Krissy Rands | ||
Name: Krissy Rands | |||
SOCIETE
GENERALE
|
|||
|
By
|
/s/ Eric E.O.Siebert, Jr. | |
Name: Eric E.O.Siebert, Jr. | |||
Title: Managing Director | |||
STANDARD CHARTERED BANK | |||
|
By:
|
/s/ James P. Hughes | |
Name: James P. Hughes | |||
Title: Director | |||
By: | /s/ Robert K. Reddington | ||
Name: Robert K. Reddington | |||
Title: AVP/Credit Documentation Credit Risk Control |
Name
of Lenders and Addresses
For
Notices
|
Domestic
Lending Office
|
Eurocurrency
Lending Office
|
Citibank,
N.A.
Building
#3
1615
Brett Rd
New
Castle, DE 19720
Attn: Bank Loan
Syndications
Fax
212-994-0961
|
Citibank,
N.A.
Building
#3
1615
Brett Rd
New
Castle, DE 19720
Attn: Bank Loan
Syndications
Fax
212-994-0961
|
Citibank,
N.A.
Building
#3
1615
Brett Rd
New
Castle, DE 19720
Attn: Bank Loan
Syndications
Fax
212-994-0961
|
Bank
of America, N.A.
100
Federal Street
Boston,
MA 02110
Attn: Jeff
McLaughlin
Tel:
(617) 434.8332
Fax:
(617) 434.8426
|
Bank
of America, N.A.
100
Federal Street
Boston,
MA 02110
Attn: Jeff
McLaughlin
Tel:
(617) 434.8332
Fax:
(617) 434.8426
|
Bank
of America, N.A.
100
Federal Street
Boston,
MA 02110
Attn: Jeff
McLaughlin
Tel:
(617) 434.8332
Fax:
(617) 434.8426
|
Lenders
|
Commitment
|
|||
Citibank,
N.A.
|
$ | 40,000,000 | ||
Bank
of America, N.A.
|
$ | 5,000,000 | ||
JP
Morgan Chase Bank, N.A.
|
55,000,000 | |||
Barclays
Bank PLC
|
50,000,000 | |||
BNP
Paribas
|
35,000,000 | |||
Credit
Suisse AG
|
100,000,000 | |||
Goldman
Sachs Bank USA
|
50,000,000 | |||
UBS
Loan Finance LLC
|
35,000,000 | |||
Wells
Fargo Bank N.A.
|
100,000,000 | |||
The
Bank of New York Mellon
|
10,000,000 | |||
HSBC
Bank USA, National Association
|
10,000,000 | |||
Morgan
Stanley Bank, N.A. (Morgan Stanley MUFG Loan Partners,
LLC)
|
10,000,000 | |||
The
Bank of Tokyo-Mitsubishi UFJ, Ltd. (Morgan Stanley MUFG Loan Partners,
LLC)
|
40,000,000 | |||
ING
Bank N.V., Dublin Branch
|
40,000,000 | |||
Royal
Bank of Canada
|
5,000,000 | |||
The
Bank of Nova Scotia
|
30,000,000 | |||
Commerzbank
AG, New York and Grand Cayman Branches
|
30,000,000 | |||
The
Northern Trust Company
|
5,000,000 | |||
RBS
Citizens, N.A.
|
30,000,000 | |||
Mizuho
Corporate Bank (USA)
|
20,000,000 | |||
PNC
Bank, National Association
|
20,000,000 | |||
Intesa
Sanpaolo S.p.A.
|
20,000,000 | |||
Skandinaviska
Enskilda Banken AB
|
20,000,000 | |||
Societe
Generale
|
20,000,000 | |||
Standard
Chartered Bank
|
20,000,000 | |||
TOTAL
|
$ | 700,000,000 |
1.
|
The
MCR Cost is an addition to the interest rate to compensate Lenders for the
cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority
which replaces all or any of its functions) or (b) the requirements of the
European Central Bank.
|
2.
|
On
the first day of each Interest Period for any Advance denominated in
Pounds Sterling or Euros (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the
“
Additional Cost
Rate
”) for each Lender participating in such Advance, in accordance
with the paragraphs set out below. The MCR Cost will be
calculated by the Administrative Agent as a weighted average of such
Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each such Lender in the relevant Advance) and will be
expressed as a percentage rate per
annum.
|
3.
|
The
Additional Cost Rate for any Lender lending from an Applicable Lending
Office in a Participating Member State (as defined in Section 2.15) will
be the percentage notified by that Lender to the Administrative
Agent. This percentage will be certified by that Lender in its
notice to the Administrative Agent to be its reasonable determination of
the cost (expressed as a percentage of that Lender’s participation in all
Advances made from that Applicable Lending Office) of complying with the
minimum reserve requirements of the European Central Bank in respect of
loans made from that Applicable Lending
Office.
|
4.
|
The
Additional Cost Rate for any Lender lending from an Applicable Lending
Office in the United Kingdom will be calculated by the Administrative
Agent as follows:
|
(a)
|
in
relation to an Advance made in Pounds
Sterling:
|
AB + C(B – D) + E
×
0.01
|
per cent. per annum
|
100
– (A +
C)
|
|
(b)
|
in
relation to a Advance made in any Alternate Currency other than Pounds
Sterling:
|
E
×
0.01
|
per cent. per annum
|
300
|
|
A
|
is
the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which such Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England
to comply with cash ratio
requirements.
|
|
B
|
is
the percentage rate of interest (excluding the Applicable Margin and the
MCR Cost and, if applicable, any additional amount of interest specified
in Section 2.07(b)) payable for the relevant Interest Period on the
Advance.
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which such Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
D
|
is
the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special
Deposits.
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Administrative Agent as being the average of the
most recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in Pounds Sterling per
£1,000,000;
|
|
(a)
|
“
Eligible
Liabilities
” has the meaning given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England.
|
|
(b)
|
“
Fees Rules
”
means the rules on periodic fees contained in the FSA Supervision Manual
or such other law or regulation as may be in force from time to time in
respect of the payment of fees for the acceptance of
deposits.
|
|
(c)
|
“
Fee Tariffs
”
means the fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate).
|
|
(d)
|
“
Special
Deposits
” has the meaning given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England.
|
|
(e)
|
“
Tariff Base
”
has the meaning given to it in, and will be calculated in accordance with,
the Fees Rules.
|
6.
|
In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal
places.
|
7.
|
If
requested by the Administrative Agent, each Reference Bank shall, as soon
as practicable after publication by the Financial Services Authority,
supply to the Administrative Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being the
average of the Fee Tariffs applicable to that Reference Bank for that
financial year) and expressed in Pounds Sterling per £1,000,000 of the
Tariff Base of that Reference Bank.
|
8.
|
Each
Lender shall supply any information required by the Administrative Agent
for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a
Lender:
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the rates
of charge of each Reference Bank for the purpose of E above shall be
determined by the Administrative Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction of
incorporation with an Applicable Lending Office in the same jurisdiction
as its Applicable Lending Office.
|
10.
|
The
Administrative Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all
respects.
|
11.
|
The
Administrative Agent shall distribute the additional amounts received as a
result of the MCR to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
12.
|
Any
determination by the Administrative Agent pursuant to this
Schedule II in relation to a formula, the MCR, an Additional Cost
Rate or any amount payable to a Lender shall, in the absence of manifest
error, be conclusive and binding on all
Parties.
|
13.
|
The
Administrative Agent may from time to time, after consultation with the
Company and the Lenders, determine and provide notice to the Company and
the Lenders of any amendments which are required to be made to this
Schedule II in order to comply with any change in law, regulation or
any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all parties to the Credit
Agreement.
|
Very
truly yours,
Stanley
Black & Decker, Inc.
|
|||
|
By
|
||
Name: | |||
Title: | |||
CITIBANK,
N.A., as Reference Bank
|
|||
|
By
|
||
Authorized Officer | |||
|
(iii) The
Type of Advances comprising the Proposed Borrowing is [Base Rate]
1
[Eurocurrency
Rate].
|
|
(iv) The
aggregate amount of the Proposed Borrowing is [$]
2
[€]
[£] ______ .
|
|
[(v)] The
Initial Interest Period for each Eurocurrency Rate Advance made as part of
the Proposed Borrowing is
month[s]].
|
Very
truly yours,
Stanley
Black & Decker, Inc.
|
|||
|
By
|
||
Name: | |||
Title: |
|
(i) which
is in the amount of $
;
|
|
(ii) which,
in the case of a Borrowing consisting of Eurocurrency Rate Advances, has
an Interest Period of
month(s);
4
and
|
|
(iii) which
was borrowed (or previously converted or continued) on ________,
20__.
|
|
(i) which
is in the amount of $
;
5
|
|
(ii) which
has an Interest Period of
month(s)
6
.
|
Very
truly yours,
Stanley
Black & Decker, Inc.
|
|||
|
By
|
||
Name: | |||
Title: |
|
Re:
|
The
$700,000,000 364-Day Credit Agreement among Stanley Black & Decker,
Inc., The Black & Decker Corporation, the Lenders party thereto and
Citibank, N.A., as Administrative
Agent
|
|
(a)
|
the
Restated Certificate of Incorporation of the Borrower, dated September 11,
1998, filed with the Connecticut Secretary of State’s office on September
15, 1998, certified by the Secretary of the Borrower as of the date
hereof,
|
|
(b)
|
the
Bylaws of the Borrower as in effect as of the date hereof, as certified by
the Secretary of the Borrower as of the date
hereof;
|
|
(c)
|
the
resolutions duly adopted at a meeting of the Board of Directors of the
Borrower on ___________, ____ authorizing, among other things, the
execution, delivery and performance by the Borrower of the Credit
Agreement and the transactions contemplated
thereby;
|
|
(d)
|
the
Certificate of Legal Existence of the Borrower as of __________, ____
issued by the Connecticut Secretary of
State;
|
|
(e)
|
the
Certificate of the General Counsel of the Borrower, dated as of the date
hereof, a copy of which is attached hereto as
Exhibit A
(the
“Borrower’s Certificate”);
|
|
(f)
|
a
copy of the Borrower’s Annual Report on Form 10-K for the year ended
January 1, ____ (the “Form 10-K”) filed with the Securities and Exchange
Commission;
|
Very truly yours,
BROWN RUDNICK LLP
|
|||
|
|
||
|
1.
|
Each
natural person executing the Credit Agreement and has sufficient legal
capacity to enter into the Credit Agreement and perform the transactions
contemplated thereby.
|
|
2.
|
Each
person other than the Borrower has all requisite power and authority and
has taken all necessary corporate or other action to enter into the Credit
Agreement, to the extent necessary to make the Credit Agreement
enforceable against it.
|
|
3.
|
Each
person other than the Borrower has complied with all legal requirements
pertaining to its status as such status relates to its rights to enforce
the Credit Agreement against the
Borrower.
|
|
4.
|
All
documents examined by us in connection with rendering this opinion are
accurate, complete and authentic, each original is authentic, each copy
conforms to an authentic original and (other than signatures on behalf of
the Borrower) all signatures are
genuine.
|
|
5.
|
All
official public records are accurate, complete and properly indexed and
filed.
|
|
6.
|
There
has not been any mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence by or among any of the parties to the Credit
Agreement.
|
|
7.
|
The
conduct of the parties to the Credit Agreement has complied in the past
and will comply in the future with any requirement of good faith, fair
dealing and conscionability.
|
|
8.
|
Each
person other than the Borrower has acted in good faith and without notice
of any defense against the enforcement of any rights created by, or
adverse claim to any property or security interest transferred or created
as part of, the Transaction.
|
|
9.
|
There
are no agreements or understandings among the parties to or bound by the
Credit Agreement, and there is no usage of trade or course of prior
dealing among such parties, that would define, modify, waive, or qualify
the terms of the Credit Agreement.
|
|
10.
|
The
Borrower will not in the future take any discretionary action (including a
decision not to act) permitted under the Credit Agreement that would
result in a violation of law or constitute a breach or default under the
Credit Agreement or court or administrative orders, writs, judgments and
decrees that name the Borrower.
|
|
11.
|
The
Borrower will obtain all permits and governmental approvals not required
at the time of the closing of the transactions contemplated by the Credit
Agreement but which are subsequently required, and will take all actions
similarly required, relevant to subsequent consummation of the
transactions or performance of the Credit
Agreement.
|
|
12.
|
All
parties to or bound by the Credit Agreement will act in accordance with,
and will refrain from taking any action that is forbidden by, the terms
and conditions of the Credit
Agreement.
|
|
By
|
||
Name: Bruce H. Beatt | |||
Title: Vice President, General Counsel and Secretary | |||
|
Re:
|
The
$700,000,000 364-Day Credit Agreement among Stanley Black & Decker,
Inc., The Black & Decker Corporation, the Lenders party thereto and
Citibank, N.A., as Administrative
Agent
|
|
A.
|
The
genuineness of all signatures.
|
|
B.
|
The
authenticity of the originals of the documents submitted to
us.
|
|
C.
|
The
conformity to authentic originals of any documents submitted to us as
copies.
|
|
D.
|
As
to matters of fact, the truthfulness of the representations made in the
Credit Agreement and the other Opinion
Documents.
|
|
E.
|
That
each of the Opinion Documents is the legal, valid and binding obligation
of each party thereto, other than the Loan Parties, enforceable against
each such party in accordance with its
terms.
|
|
F.
|
That:
|
|
By
|
||
Name: | |||
Title: | |||
Percentage
interest assigned:
|
% | |||
Assignee’s
Commitment:
|
$ | |||
Aggregate
outstanding principal amount of
Advances
assigned:
|
$ | |||
Principal
amount of Note
payable
to Assignee:
|
$ | |||
Principal
amount of Note
payable
to Assignor:
|
$ | |||
|
||||
Effective
Date
7
:
|
_______________,
|
20__ |
[NAME
OF ASSIGNOR],
as Assignor
|
|||
|
By
|
||
Name: | |||
Title: |
Dated: ____________________, 20___ |
[NAME
OF ASSIGNEE],
as Assignor
|
|||
|
By
|
||
Name: | |||
Title: |
Dated: ____________________, 20___ |
[STANLEY
BLACK & DECKER, INC.]
[DESIGNATED
BORROWER]
|
|||
|
By
|
||
Name: | |||
Title: | |||
|
By
|
||
Name: | |||
Title: | |||
|
(a)
|
Corporate
Existence
. The Designated Borrower is an entity duly
organized and validly existing under the laws of its jurisdiction of
formation.
|
|
(b)
|
Corporate
Authorization, Etc.
The performance of its obligations
under the Credit Agreement and the execution, delivery and performance by
the Designated Borrower of this Designation Letter and any Note executed
by the Designated Borrower are within the Designated Borrower’s corporate
powers, have been duly authorized by all necessary corporate action and do
not contravene (i) the Designated Borrower’s charter documents of (ii) any
law or contractual restriction binding on or affecting the Designated
Borrower.
|
|
(c)
|
No
Approvals
. No authorization, approval or action by, and
no notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Designated Borrower’s of this Designation Letter and any Note executed by
the Designated Borrower or the performance of its obligations under the
Credit Agreement.
|
|
(d)
|
Enforceability
. Each
of the Credit Agreement and this Designation Letter is and, upon issuance
and delivery thereof in accordance with the Credit Agreement, each Note
executed by the Designated Borrower will be the legal, valid and binding
obligations of the Designated Borrower, enforceable against the Designated
Borrower in accordance with their respective
terms.
|
|
(e)
|
Investment
Company
. The Designated Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended.
|
|
(f)
|
No
Defaults
. The Designated Borrower is not in default
under or with respect to any agreement, instrument or undertaking to which
it is a party or by which it or any of its property is bound in any
respect which could reasonably be expected to result in a Material Adverse
Effect.
|
|
(g)
|
Use of Proceeds,
Etc.
All proceeds of each Advance made to the Designated
Borrower will be used by it only in accordance with the provisions of
Section 2.12 of the Credit Agreement. It is not, nor will be,
engaged in the business of extending credit for the purpose of buying or
carrying Margin Stock and no proceeds of any Advance will be used by it to
extend credit to others for the purpose of buying or carrying any Margin
Stock. Neither the making of any Advance to the Designated
Borrower nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations U or X issued by the Board
of Governors of the Federal Reserve
System.
|
STANLEY
BLACK & DECKER, INC.
|
|||
|
By
|
||
Name: | |||
Title: | |||
|
By
|
||
Name: | |||
Title: | |||
[NAME
OF DESIGNATED BORROWER]
|
|||
|
By
|
||
Name: | |||
Title: | |||
STANLEY
BLACK & DECKER, INC.
|
|||
|
By
|
||
Name: | |||
Title: | |||
|
By
|
||
Name: | |||
Title: | |||
STANLEY
BLACK & DECKER, INC. (formerly
known as The Stanley Works) |
|
By
|
/s/ Craig A. Douglas |
Title:
VP & Treasurer
|
CITIBANK,
N.A.,
as
Agent and as Lender
|
|
By
|
/s/ Carolyn Kee |
Name: Carolyn
Kee
|
|
Title: Vice
President
|
BANK OF AMERICA | ||
By
|
/s/ Jeffrey J. McLaughlin | |
Name:
Jeffrey J. McLaughlin
|
||
Title:
SVP
|
CITIBANK,
N.A.,
as
Agent and as Lender
|
|
By
|
/s/ Carolyn Kee |
Name: Carolyn
Kee
|
|
Title: Vice
President
|
BANK OF AMERICA | ||
By
|
/s/ Jeffrey M. McLaughlin | |
Name:
Jeffrey M. McLaughlin
|
||
Title:
SVP
|
J.P. MORGAN CHASE BANK N.A. | ||
By
|
/s/ Anthony W. White | |
Name:
Anthony W. White
|
||
Title:
Vice President
|
BARCLAYS BANK PLC | ||
By
|
/s/ Kevin Cullen | |
Name:
Kevin Cullen
|
||
Title:
Director
|
BNP PARIBAS | ||
By
|
/s/ Curt Price | |
Name:
Curt Price
|
||
Title: Managing
Director
|
||
By | /s/ Fik Durmus | |
Name: Fik Durmus | ||
Title: Director |
WILLIAM STREET LLC | ||
By
|
/s/ Mark Walton | |
Name:
Mark Walton
|
||
Title:
Authorized Signatory
|
UBS LOAN FINANCE LLC | ||
By
|
/s/ Irja R. Otsa | |
Name:
Irja R. Otsa
|
||
Title:
Associate Director
|
||
By | /s/ Mary E. Evans | |
Name: Mary E. Evans | ||
Title: Associate Director |
WELLS FARGO BANK, N.A. | ||
By
|
/s/ Jordon Fragiacomo | |
Name:
Jordon Fragiacomo
|
||
Title:
Director
|
THE BANK OF NEW YORK MELLON | ||
By
|
/s/ Donald G. Cassidy, Jr. | |
Name:
Donald G. Cassidy, Jr.
|
||
Title:
Managing Director
|
HSBC BANK USA, NATIONAL ASSOCIATION | ||
By
|
/s/ Manuel Burge ñ o | |
Name:
Manuel Burge
ñ
o
|
||
Title:
Vice President, Relationship
Manager
|
MORGAN STANLEY BANK, N.A. | ||
By
|
/s/ Melissa James | |
Name:
Melissa James
|
||
Title:
Authorized Signatory
|
ROYAL BANK OF CANADA | ||
By
|
/s/ Dustin Craven | |
Name:
Dustin Craven
|
||
Title:
Authorized Signatory
|
THE NORTHERN TRUST COMPANY | ||
By
|
/s/ Peter Ja. Hallan | |
Name:
Peter J. Hallan
|
||
Title:
Vice President
|
1:01
|
The
term “Board of Directors” shall mean the Board of Directors of the
Corporation.
|
1:02
|
The
term “Change in Control” shall have the meaning provided in Section 10:02
of the Plan.
|
1:03
|
The
term “Code” shall mean the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
|
1:04
|
The
term “Committee” shall mean a committee to be appointed by the Board of
Directors to consist of three or more of those members of the Board of
Directors who are disinterested persons within the meaning of Rule 16b-3
promulgated under the Exchange Act and are outside directors within the
meaning of the Section 162(m) Regulations, as each may be amended from
time to time.
|
1:05
|
The
term “Common Stock” shall mean the shares of common stock, par value $.50
per share, of the Corporation.
|
1:06
|
The
term “Corporation” shall mean The Black & Decker
Corporation.
|
1:07
|
The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.
|
1:08
|
The
term “Fair Market Value of a share of Common Stock” shall mean the average
of the high and low sale price per share of Common Stock as finally
reported in the New York Stock Exchange Composite Transactions for the New
York Stock Exchange, or if shares of Common Stock are not sold on such
date, the average of the high and low sale price per share of Common Stock
as finally reported in the New York Stock Exchange Composite Transactions
for the New York Stock Exchange for the most recent prior date on which
shares of Common Stock were sold.
|
1:09
|
The
term “Incentive Stock Option” shall mean any Option granted pursuant to
the Plan that is designated as an Incentive Stock Option and which
satisfies the requirements of Section 422(b) of the
Code.
|
1:10
|
The
term “Limited Stock Appreciation Right” shall mean a limited tandem stock
appreciation right that entitles the holder to receive cash upon a Change
in Control pursuant to Article 10:00 of the Plan.
|
1:11
|
The
term “Nonqualified Stock Option” shall mean any Option granted pursuant to
the Plan that is not an Incentive Stock Option.
|
1:12
|
The
term “Option” or “Stock Option” shall mean a right granted pursuant to the
Plan to purchase shares of Common Stock, and shall include the terms
Incentive Stock Option and Nonqualified Stock Option.
|
1:13
|
The
term “Option Agreement” shall mean the written agreement representing
Options granted pursuant to the Plan as contemplated by Article 6:00 of
the Plan.
|
1:14
|
The
term “Plan” shall mean The Black & Decker 1996 Stock Option Plan as
approved by the Board of Directors on February 14, 1996, and adopted by
the stockholders of the Corporation at the 1996 Annual Meeting of
Stockholders, as the same may be amended from time to
time.
|
1:15
|
The
term “Rights” shall include Stock Appreciation Rights and Limited Stock
Appreciation Rights.
|
1:16
|
The
term “Section 162(m) Regulations” shall mean the regulations adopted
pursuant to Section 162(m) of the Code.
|
1:17
|
The
term “Stock Appreciation Right” shall mean a right to receive cash or
shares of Common Stock pursuant to Article 8:00 of the
Plan.
|
1:18
|
The
term “Stock Appreciation Right Agreement” shall mean the written agreement
representing Stock Appreciation Rights granted pursuant to the Plan as
contemplated by Article 8:00 of the Plan.
|
1:19
|
The
term “Stock Appreciation Right Base Price” shall mean the base price for
determining the value of a Stock Appreciation Right under Section 8:02,
which Stock Appreciation Right Base Price shall be established by the
Committee at the time of the grant of Stock Appreciation Rights pursuant
to the Plan and shall not be less than the Fair Market Value of a share of
Common Stock on the date of grant. If the Committee does not establish a
specific Stock Appreciation Right Base Price at the time of grant, the
Stock Appreciation Right Base Price shall be equal to the Fair Market
Value of a share of Common Stock on the date of grant of the Stock
Appreciation Right.
|
1:20
|
The
term “subsidiary” or “subsidiaries” shall mean a corporation of which
capital stock possessing 50% or more of the total combined voting power of
all classes of its capital stock entitled to vote generally in the
election of directors is owned in the aggregate by the Corporation
directly or indirectly through one or more
subsidiaries.
|
2:01
|
The
Plan shall become effective upon stockholder approval, provided that such
approval is received on or before May 31, 1996, and provided further that
the Committee may grant Options or Rights pursuant to the Plan prior to
stockholder approval if such Options or Rights by their terms are
contingent upon subsequent stockholder approval of the
Plan.
|
3:01
|
The
Plan shall be administered by the Committee.
|
3:02
|
The
Committee may establish, from time to time and at any time, subject to the
limitations of the Plan as set forth herein, such rules and regulations
and amendments and supplements thereto, as it deems necessary to comply
with applicable law and regulation and for the proper administration of
the Plan. A majority of the members of the Committee shall constitute a
quorum. The vote of a majority of a quorum shall constitute action by the
Committee.
|
3:03
|
The
Committee shall from time to time determine the names of those executives
and other key employees who, in its opinion, should receive Options or
Rights, and shall determine the numbers of shares on which Options should
be granted or upon which Rights should be based to each such person and
the nature of the Options or Rights to be granted.
|
3:04
|
Options
and Rights shall be granted by the Corporation only upon the prior
approval of the Committee and upon the execution of an Option Agreement or
Stock Appreciation Right Agreement between the Corporation and the Option
holder or the Stock Appreciation Right holder.
|
3:05
|
The
Committee’s interpretation and construction of the provisions of the Plan
and the rules and regulations adopted by the Committee shall be final. No
member of the Committee or the Board of Directors shall be liable for any
action taken or determination made, in respect of the Plan, in good
faith.
|
4:01
|
Participation
in the Plan shall be limited to such executives and other key employees of
the Corporation and its subsidiaries who at the date of grant of an Option
or Right are regular, full-time employees of the Corporation or any of its
subsidiaries and who shall be designated by the
Committee.
|
4:02
|
No
member of the Board of Directors who is not also an employee shall be
eligible to participate in the Plan. No employee who owns beneficially
more than 10% of the total combined voting power of all classes of stock
of the Corporation shall be eligible to participate in the
Plan.
|
4:03
|
No
employee may be granted, in any calendar year, Options or Stock
Appreciation Rights exceeding 100,000 in the
aggregate.
|
5:01
|
There
shall be reserved for the granting of Options or Stock Appreciation Rights
pursuant to the Plan and for issuance and sale pursuant to such Options or
Stock Appreciation Rights 2,400,000 shares of Common Stock. To determine
the number of shares of Common Stock available at any time for the
granting of Options or Stock Appreciation Rights, there shall be deducted
from the total number of reserved shares of Common Stock, the number of
shares of Common Stock in respect of which Options have been granted
pursuant to the Plan that are still outstanding or have been exercised.
The shares of Common Stock to be issued upon the exercise of Options or
Stock Appreciation Rights granted pursuant to the Plan shall be made
available from the authorized and unissued shares of Common Stock. If for
any reason shares of Common Stock as to which an Option has been granted
cease to be subject to purchase thereunder, then such shares of Common
Stock again shall be available for issuance pursuant to the exercise of
Options or Stock Appreciation Rights pursuant to the Plan. Except as
provided in Section 5:03, however, the aggregate number of shares of
Common Stock that may be issued upon the exercise of Options and Stock
Appreciation Rights pursuant to the Plan shall not exceed 2,400,000 shares
and no more than 2,400,000 Stock Appreciation Rights shall be granted
pursuant to the Plan.
|
5:02
|
Proceeds
from the purchase of shares of Common Stock upon the exercise of Options
granted pursuant to the Plan shall be used for the general business
purposes of the Corporation.
|
5:03
|
Subject
to the provisions of Section 10:02, in the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares of
Common Stock, merger, consolidation, share exchange, acquisition of
property or stock, or any change in the capital structure of the
Corporation, the Committee shall make such adjustments as may be
appropriate in the number and kind of shares reserved for purchase by
executives or other key employees, in the number, kind and price of shares
covered by Options and Stock Appreciation Rights granted pursuant to the
Plan but not then exercised, and in the number of Rights, if any, granted
pursuant to the Plan but not then
exercised.
|
6:01
|
Each
Option granted pursuant to the Plan shall be evidenced by an Option
Agreement in such form and with such terms and conditions (including,
without limitation, noncompete, confidentiality or other similar
provisions) as the Committee from time to time may determine. The right of
an Option holder to exercise his or her Option shall at all times be
subject to the terms and conditions set forth in the respective Option
Agreement.
|
|
6:02
|
The
exercise price per share for Options shall be established by the Committee
at the time of the grant of Options pursuant to the Plan and shall not be
less than the Fair Market Value of a share of Common Stock on the date on
which the Option is granted. If the Committee does not establish a
specific exercise price per share at the time of grant, the exercise price
per share shall be equal to the Fair Market Value of a share of Common
Stock on the date of grant of the
Options.
|
6:03
|
Each
Option, subject to the other limitations set forth in the Plan, may extend
for a period of up to 10 years from the date on which it is granted. The
term of each Option shall be determined by the Committee at the time of
grant of the Option, provided that if no term is established by the
Committee the term of the Option shall be 10 years from the date on which
it is granted.
|
|
6:04
|
Unless
otherwise provided by the Committee, the number of shares of Common Stock
subject to each Option shall be divided into four installments of 25%
each. The first installment shall be exercisable 12 months after the date
the Option was granted, and each succeeding installment shall be
exercisable 12 months after the date the immediately preceding installment
became exercisable. If an Option holder does not purchase the full number
of shares of Common Stock that he or she at any time has become entitled
to purchase, he or she may purchase all or any part of those shares of
Common Stock at any subsequent time during the term of the
Option.
|
|
6:05
|
Options
shall be nontransferable and nonassignable, except that Options may be
transferred by testamentary instrument or by the laws of descent and
distribution.
|
|
6:06
|
Upon
voluntary or involuntary termination of an Option holder’s employment, his
or her Option and all rights thereunder shall terminate effective at the
close of business on the date the Option holder ceases to be a regular,
full-time employee of the Corporation or any of its subsidiaries, except
(i) to the extent previously exercised, (ii) as provided in Sections 6:07,
6:08, and 6:09, and (iii) in the case of involuntary termination of
employment, for a period of 30 days thereafter the Option holder shall be
entitled to exercise that portion of the Option which was exercisable at
the close of business on the date the Option holder ceased to be a
regular, full-time employee of the Corporation or any of its
subsidiaries.
|
|
6:07
|
In
the event an Option holder (i) ceases to be an executive or other key
employee of the Corporation or any of its subsidiaries due to involuntary
termination, (ii) takes a leave of absence from the Corporation or any of
its subsidiaries for personal reasons or as a result of entry into the
armed forces of the United States, or any of the departments or agencies
of the United States government, or (iii) terminates employment by reason
of illness, disability, or other special circumstance, the Committee may
consider his or her case and may take such action in respect of the
related Option Agreement as it may deem appropriate under the
circumstances, including accelerating the time previously granted Options
may be exercised and extending the time following the Option holder’s
termination of employment during which the Option holder is entitled to
purchase the shares of Common Stock subject to such Options, provided that
in no event may any Option be exercised after the expiration of the term
of the Option.
|
|
6:08
|
If
an Option holder dies during the term of his or her Option without having
fully exercised the Option, the executor or administrator of his or her
estate or the person who inherits the right to exercise the Option by
bequest or inheritance shall have the right within three years of the
Option holder’s death to purchase the number of shares of Common Stock
that the deceased Option holder was entitled to purchase at the date of
death, after which the Option shall lapse, provided that in no event may
any Option be exercised after the expiration of the term of the
Option.
|
|
6:09
|
If
an Option holder’s employment is terminated without having fully exercised
his or her Option and (i) the Option holder is 62 years of age or older,
or (ii) the Option holder has been employed by the Corporation or any of
its subsidiaries for at least 10 years and the Option holder’s age plus
years of such employment total not less than 55 years, then such Option
holder shall have the right within three years of the Option holder’s
termination of employment to purchase the number of shares of Common Stock
that the Option holder was entitled to purchase at the date of
termination, after which the Option shall lapse, provided that in no event
may any Option be exercised after the expiration of the term of the
Option.
|
The
granting of an Option pursuant to the Plan shall not constitute or be
evidence of any agreement or understanding, express or implied, on the
part of the Corporation or any of its subsidiaries to employ the Option
holder for any specified period.
|
||
6:11
|
In
addition to the general terms and conditions set forth in this Article
6:00 in respect of Options granted pursuant to the Plan, Incentive Stock
Options granted pursuant to the Plan shall be subject to the following
additional terms and conditions:
|
|
(a)
|
The
aggregate fair market value (determined at the time the Incentive Stock
Option is granted) of the shares of Common Stock in respect of which
“incentive stock options” are exercisable for the first time by the Option
holder during any calendar year (under all such plans of the Corporation
and its subsidiaries) shall not exceed $100,000; and
|
|
(b)
|
The
Option Agreement in respect of an Incentive Stock Option may contain any
other terms and conditions specified by the Board of Directors that are
not inconsistent with the Plan, except that such terms and conditions must
be consistent with the requirements for “incentive stock options” under
Section 422 of the Code.
|
7:01
|
An
Option holder (or other person or persons, if any, entitled to exercise an
Option hereunder) desiring to exercise an Option granted pursuant to the
Plan as to all or part of the shares of Common Stock covered by the Option
shall (i) notify the Corporation in writing at its principal office at 701
East Joppa Road, Towson, Maryland 21286, to that effect, specifying the
number of shares of Common Stock to be purchased and the method of payment
therefor, and (ii) make payment or provision for payment for the shares of
Common Stock so purchased in accordance with this Article 7:00. Such
written notice may be given by means of a facsimile transmission. If a
facsimile transmission is used, the Option holder should mail the original
executed copy of the written notice to the Corporation promptly
thereafter.
|
|
7:02
|
Payment
or provision for payment shall be made as follows:
|
|
(a)
|
The
Option holder shall deliver to the Corporation at the address set forth in
Section 7:01 United States currency in an amount equal to the aggregate
purchase price of the shares of Common Stock as to which such exercise
relates; or
|
|
(b)
|
The
Option holder shall tender to the Corporation shares of Common Stock
already owned by the Option holder that, together with any cash tendered
therewith, have an aggregate fair market value (determined based on the
Fair Market Value of a share of Common Stock on the date the notice set
forth in Section 7:01 is received by the Corporation) equal to the
aggregate purchase price of the shares of Common Stock as to which such
exercise relates; or
|
|
(c)
|
The
Option holder shall deliver to the Corporation an exercise notice together
with irrevocable instructions to a broker to deliver promptly to the
Corporation the amount of sale or loan proceeds necessary to pay the
aggregate purchase price of the shares of Common Stock as to which such
exercise relates and to sell the shares of Common Stock to be issued upon
exercise of the Option and deliver the cash proceeds less commissions and
brokerage fees to the Option holder or to deliver the remaining shares of
Common Stock to the Option holder.
|
|
Notwithstanding
the foregoing provisions, the Committee, in granting Options pursuant to
the Plan, may limit the methods in which an Option may be exercised by any
person and, in processing any purported exercise of an Option granted
pursuant to the Plan, may refuse to recognize the method of exercise
selected by the Option holder (other than the method of exercise set forth
in Section 7:02(a)) if, (A) in the opinion of counsel to the Corporation,
(i) the Option holder is or within the six months preceding such exercise
was subject to reporting under Section 16(a) of the Exchange Act and (ii)
there is a substantial likelihood that the method of exercise selected by
the Option holder would subject the Option holder to a substantial risk of
liability under Section 16 of the Exchange Act, or (B) in the opinion of
the Committee, the method of exercise could have an adverse tax or
accounting effect to the Corporation.
|
7:03
|
In
addition to the alternative methods of exercise set forth in Section 7:02,
holders of Nonqualified Stock Options shall be entitled, at or prior to
the time the written notice provided for in Section 7:01 is delivered to
the Corporation, to elect to have the Corporation withhold from the shares
of Common Stock to be delivered upon exercise of the Nonqualified Stock
Option that number of shares of Common Stock (determined based on the Fair
Market Value of a share of Common Stock on the date the notice set forth
in Section 7:01 is received by the Corporation) necessary to satisfy any
withholding taxes attributable to the exercise of the Nonqualified Stock
Option. Alternatively, such holder of a Nonqualified Stock Option may
elect to deliver previously owned shares of Common Stock upon exercise of
the Nonqualified Stock Option to satisfy any withholding taxes
attributable to the exercise of the Nonqualified Stock Option. The maximum
amount that an Option holder may elect to have withheld from the shares of
Common Stock otherwise deliverable upon exercise or the maximum number of
previously owned shares an Option holder may deliver shall be based on the
maximum federal, state and local taxes payable by the Option holder.
Notwithstanding the foregoing provisions, the Committee may include in the
Option Agreement relating to any such Nonqualified Stock Option provisions
limiting or eliminating the Option holder’s ability to pay his or her
withholding tax obligation with shares of Common Stock or, if no such
provisions are included in the Option Agreement but in the opinion of the
Committee such withholding could have an adverse tax or accounting effect
to the Corporation, at or prior to exercise of the Nonqualified Stock
Option the Committee may so limit or eliminate the Option holder’s ability
to pay his or her withholding tax obligation with shares of Common Stock.
Notwithstanding the foregoing provisions, a holder of a Nonqualified Stock
Option may not elect any of the methods of satisfying his or her
withholding tax obligation in respect of any exercise if, in the opinion
of counsel to the Corporation, (i) the holder of the Nonqualified Stock
Option is or within the six months preceding such exercise was subject to
reporting under Section 16(a) of the Exchange Act and (ii) there is a
substantial likelihood that the election or timing of the election would
subject the holder to a substantial risk of liability under Section 16 of
the Exchange Act.
|
|
7:04
|
An
Option holder at any time may elect in writing to abandon an Option in
respect of all or part of the number of shares of Common Stock as to which
the Option shall not have been exercised.
|
|
7:05
|
An
Option holder shall have none of the rights of a stockholder of the
Corporation until the shares of Common Stock covered by the Option are
issued to him upon exercise of the
Option.
|
8:01
|
Each
Stock Appreciation Right granted pursuant to the Plan shall be evidenced
by a Stock Appreciation Right Agreement in such form and with such terms
and conditions (including, without limitation, noncompete, confidentiality
or other similar provisions) as the Committee from time to time may
determine. Notwithstanding the foregoing provision, Stock Appreciation
Rights granted in tandem with a related Option shall be evidenced by the
Option Agreement in respect of the related Option. The right of a Stock
Appreciation Right holder to exercise his or her Stock Appreciation Rights
shall at all times be subject to the terms and conditions set forth in the
respective Stock Appreciation Right Agreement.
|
8:02
|
Except
as provided in Section 9:03, each Stock Appreciation Right shall entitle
the holder, subject to the terms and conditions of the Plan, to receive
upon exercise of the Stock Appreciation Right an amount, payable in cash
or shares of Common Stock (determined based on the Fair Market Value of a
share of Common Stock on the date the notice set forth in Section 9:01 is
received by the Corporation), equal to the Fair Market Value of a share of
Common Stock on the date of receipt by the Corporation of the notice
required by Section 9:01 less the Stock Appreciation Right Base Price.
Notwithstanding the foregoing provision, each Stock Appreciation Right
that is granted in tandem with a related Option shall entitle the holder,
subject to the terms and conditions of the Plan, to surrender to the
Corporation for cancellation all or a portion of the related Option, but
only to the extent such Stock Appreciation Right and related Option then
are exercisable, and to be paid therefor an amount, payable in cash or
shares of Common Stock (determined based on the Fair Market Value of a
share of Common Stock on the date the notice set forth in Section 9:01 is
received by the Corporation), equal to the Fair Market Value of a share of
Common Stock on the date of receipt by the Corporation of the notice
required by Section 9:01 less the Stock Appreciation Right Base
Price.
|
8:03
|
Each
Stock Appreciation Right, subject to the other limitations set forth in
the Plan, may extend for a period of up to 10 years from the date on which
it is granted. The term of each Stock Appreciation Right shall be
determined by the Committee at the time of grant of the Stock Appreciation
Right, provided that if no term is established by the Committee the term
of the Stock Appreciation Right shall be 10 years from the date on which
it is granted.
|
8:04
|
Unless
otherwise provided by the Committee, the number of Stock Appreciation
Rights granted pursuant to each Stock Appreciation Right Agreement shall
be divided into four installments of 25% each. The first installment shall
be exercisable 12 months after the date the Stock Appreciation Right was
granted, and each succeeding installment shall be exercisable 12 months
after the date the immediately preceding installment became exercisable.
If a Stock Appreciation Right holder does not exercise the Stock
Appreciation Right to the extent that he or she at any time has become
entitled to exercise, the Stock Appreciation Right holder may exercise all
or any part of the Stock Appreciation Right at any subsequent time during
the term of the Stock Appreciation Right.
|
8:05
|
Stock
Appreciation Rights shall be nontransferable and nonassignable, except
that Stock Appreciation Rights may be transferred by testamentary
instrument or by the laws of descent.
|
8:06
|
Upon
voluntary or involuntary termination of a Stock Appreciation Right
holder’s employment, his or her Stock Appreciation Right and all rights
thereunder shall terminate effective as of the close of business on the
date the Stock Appreciation Right holder ceases to be a regular, full-time
employee of the Corporation or any of its subsidiaries, except (i) to the
extent previously exercised, (ii) except as provided in Sections 8:07,
8:08, and 8:09, and (iii) in the case of involuntary termination of
employment, for a period of 30 days thereafter the Stock Appreciation
Right holder shall be entitled to exercise that portion of the Stock
Appreciation Right which was exercisable at the close of business on the
date the Stock Appreciation Right holder ceased to be a regular, full-time
employee of the Corporation or any of its subsidiaries.
|
8:07
|
In
the event a Stock Appreciation Right holder (i) ceases to be an executive
or other key employee of the Corporation or any of its subsidiaries due to
involuntary termination, (ii) takes a leave of absence from the
Corporation or any of its subsidiaries for personal reasons or as a result
of entry into the armed forces of the United States, or any of the
departments or agencies of the United States government, or (iii)
terminates employment by reason of illness, disability, or other special
circumstance, the Committee may consider his or her case and may take such
action in respect of the related Stock Appreciation Right Agreement as it
may deem appropriate under the circumstances, including accelerating the
time previously granted Stock Appreciation Rights may be exercised and
extending the time following the Stock Appreciation Right holder’s
termination of employment during which the Stock Appreciation Right holder
is entitled to exercise his or her Stock Appreciation Rights, provided
that in no event may any Stock Appreciation Right be exercised after the
expiration of the term of the Stock Appreciation Right.
|
8:08
|
If
a Stock Appreciation Right holder dies during the term of his or her Stock
Appreciation Right without having fully exercised the Stock Appreciation
Right, the executor or administrator of his or her estate or the person
who inherits the right to exercise the Stock Appreciation Right by bequest
or inheritance shall have the right within three years of the Stock
Appreciation Right holder’s death to exercise the Stock Appreciation
Rights that the deceased Stock Appreciation Right holder was entitled to
purchase at the date of death, after which the Stock Appreciation Right
shall lapse, provided that in no event may any Stock Appreciation Right be
exercised after the expiration of the term of the Stock Appreciation
Right.
|
8:09
|
If
a Stock Appreciation Right holder’s employment is terminated without
having fully exercised his or her Stock Appreciation Right and (i) the
Stock Appreciation Right holder is 62 years of age or older, or (ii) the
Stock Appreciation Right holder has been employed by the Corporation or
any of its subsidiaries for at least 10 years and the Stock Appreciation
Right holder’s age plus years of such employment total not less than 55
years, then such Stock Appreciation Right holder shall have the right
within three years of the Stock Appreciation Right holder’s termination of
employment to exercise the Stock Appreciation Rights that the Stock
Appreciation Right holder was entitled to exercise at the date of
termination, after which the Stock Appreciation Right shall lapse,
provided that in no event may any Stock Appreciation Right be exercised
after the expiration of the term of the Stock Appreciation
Right.
|
8:10
|
The
granting of a Stock Appreciation Right pursuant to the Plan shall not
constitute or be evidence of any agreement or understanding, expressed or
implied, on the part of the Corporation or any of its subsidiaries to
employ the Stock Appreciation Right holder for any specified
period.
|
9:01
|
A
Stock Appreciation Right holder (or other person or persons, if any,
entitled to exercise a Stock Appreciation Right hereunder) desiring to
exercise a Stock Appreciation Right granted pursuant to the Plan shall
notify the Corporation in writing at its principal office at 701 East
Joppa Road, Towson, Maryland 21286, to that effect, specifying the number
of Stock Appreciation Rights to be exercised. Such written notice may be
given by means of a facsimile transmission. If a facsimile transmission is
used, the Stock Appreciation Right holder should mail the original
executed copy of the written notice to the Corporation promptly
thereafter.
|
9:02
|
The
Committee in its sole and absolute discretion shall determine whether a
Stock Appreciation Right shall be settled upon exercise in cash or in
shares of Common Stock. The Committee, in making such a determination, may
from time to time adopt general guidelines or determinations as to whether
Stock Appreciation Rights shall be settled in cash or in shares of Common
Stock.
|
9:03
|
In
the event that a Stock Appreciation Right holder delivers the notice
required by Section 9:01 and, in the opinion of counsel to the
Corporation, (i) the Stock Appreciation Right holder is or within the six
months preceding such notice was subject to reporting under Section 16(a)
of the Exchange Act and (ii) there is a substantial likelihood that the
exercise of the Stock Appreciation Right would subject the Stock
Appreciation Right holder to a substantial risk of liability under Section
16 of the Exchange Act, the Corporation may refuse to recognize the Stock
Appreciation Right holder’s exercise notice. In the event that a Stock
Appreciation Right is exercised by a person who, in the opinion of counsel
to the Corporation, is subject to reporting under Section 16(a) of the
Exchange Act, the notice required by Section 9:01 is received by the
Corporation within the “window periods” specified in Rule 16b-3(e) of the
Exchange Act (or any successor thereto), and the Stock Appreciation Right
is to be settled in cash, the Stock Appreciation Right holder shall be
entitled to receive, in lieu of the amount provided for in Section 8:02 of
the Plan, an amount equal to the highest Fair Market Value of a share of
Common Stock during the applicable “window period” specified in Rule
16b-3(e) of the Exchange Act (or any successor thereto) less the Stock
Appreciation Right Base Price.
|
10:01
|
Notwithstanding
any other provision of the Plan, the Committee, in its sole and absolute
discretion, may grant Limited Stock Appreciation Rights entitling Option
holders to receive, in connection with a Change in Control (as defined in
Section 10:02), a cash payment in cancellation of all of their Options
which are outstanding on the date the Change in Control occurs (whether or
not such Options are then presently exercisable; provided, however, that
in the case of officers subject to Section 16 of the Exchange Act the
Options to which the Limited Stock Appreciation Rights relate have been
held for a period of at least six months from the date of acquisition to
the date of cash settlement), which payment shall be equal to the number
of shares covered by the cancelled Options multiplied by the excess over
the exercise price of the Options of the higher of the (i) Fair Market
Value of a share of Common Stock on the date of the Change in Control or
(ii) the highest per share price paid for the shares of Common Stock in
connection with the Change in Control (with the value of any noncash
consideration paid in connection with the Change in Control to be
determined by the Committee in its sole and absolute discretion). For
purposes of this Section 10:01 as well as the other provisions of this
Plan, once an Option or portion of an Option has terminated, lapsed or
expired, or has been abandoned, in accordance with the provisions of the
Plan, the Option (or the portion of the Option) that has terminated,
lapsed or expired, or has been abandoned, shall cease to be outstanding.
Limited Stock Appreciation Rights shall not be exercisable at the
discretion of the holder but shall automatically be exercised upon a
Change in Control.
|
10:02
|
For
purposes of Section 10:01 of the Plan, a “Change in Control” shall mean a
change in control of the Corporation of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, whether or not the Corporation is in
fact required to comply therewith, provided that, without limitation, such
a Change in Control shall be deemed to have occurred if (A) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or any of its subsidiaries, or a
corporation owned, directly or indirectly, by the stockholders of the
Corporation in substantially the same proportions as their ownership of
stock of the Corporation, is or becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 20% or more of the combined
voting power of the Corporation’s then outstanding securities; or (B)
during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors and any new
director (other than a director designated by a person who has entered
into an agreement with the Corporation to effect a transaction described
in clauses (A) or (C) of this Section 10.02) whose election by the Board
of Directors or nomination for election by the Corporation’s stockholders
was approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or (C) the
stockholders of the Corporation approve a merger, share exchange or
consolidation of the Corporation with any other corporation, other than a
merger, share exchange or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 60% of
the combined voting power of the voting securities of the Corporation or
such surviving entity outstanding immediately after such merger, share
exchange or consolidation, or the stockholders of the Corporation approve
a plan of complete liquidation of the Corporation or an agreement for the
sale or disposition by the Corporation of all or substantially all the
Corporation’s assets.
|
11:01
|
The
Board of Directors shall have the right at any time and from time to time
to amend, modify, or discontinue the Plan provided that, except as
provided in Section 5:03, no such amendment, modification, or
discontinuance of the Plan shall (i) revoke or alter the terms of any
valid Option, Stock Appreciation Right, or Limited Stock Appreciation
Right previously granted pursuant to the Plan, (ii) increase the number of
shares of Common Stock to be reserved for issuance and sale pursuant to
Options or Stock Appreciation Rights granted pursuant to the Plan, (iii)
decrease the price determined pursuant to the provisions of Section 6:02
or increase the amount of cash or shares of Common Stock that a Stock
Appreciation Right holder is entitled to receive upon exercise of a Stock
Appreciation Right, (iv) change the class of employee to whom Options or
Stock Appreciation Rights may be granted pursuant to the Plan, or (v)
provide for Options or Stock Appreciation Rights exercisable more than 10
years after the date granted.
|
12:01
|
The
Plan and the grant and exercise of Options, Stock Appreciation Rights, and
Limited Stock Appreciation Rights pursuant to the Plan shall be subject to
all applicable governmental laws and regulations. Notwithstanding any
other provision of the Plan to the contrary, the Board of Directors may in
its sole and absolute discretion make such changes in the Plan as may be
required to conform the Plan to such laws and
regulations.
|
13:01
|
No
Option or Stock Appreciation Right shall be granted pursuant to the Plan
after the close of business on February 13,
2006.
|
1:01
|
The
term “Board of Directors” shall mean the Board of Directors of the
Corporation.
|
1:02
|
The
term “Change in Control” shall have the meaning provided in Section 10:02
of the Plan.
|
1:03
|
The
term “Code” shall mean the Internal Revenue Code of 1986, as amended, and
any regulations promulgated
thereunder.
|
1:04
|
The
term “Committee” shall mean the Compensation Committee of the Board of
Directors.
|
1:05
|
The
term “Common Stock” shall mean the shares of common stock, par value $.50
per share, of the Corporation.
|
1:06
|
The
term “Corporation” shall mean The Black & Decker
Corporation.
|
1:07
|
The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.
|
1:08
|
The
term “Fair Market Value of a share of Common Stock” shall mean the closing
sale price per share of Common Stock as finally reported in the New York
Stock Exchange Composite Transactions for the New York Stock Exchange, or
if shares of Common Stock are not sold on such date, the closing sale
price per share of Common Stock as finally reported in the New York Stock
Exchange Composite Transactions for the New York Stock Exchange for the
most recent prior date on which shares of Common Stock were
sold.
|
1:09
|
The
term “Immediate Family Member” shall mean each of (i) the children,
step children or grandchildren of the Initial Holder, (ii) the spouse or
any parent of the Initial Holder, (iii) any trust solely for the benefit
of any such family members, and (iv) any partnership or other entity in
which such family members are the only partners or other equity
holders.
|
1:10
|
The
term “Incentive Stock Option” shall mean any Option granted pursuant to
the Plan that is designated as an Incentive Stock Option and that
satisfies the requirements of Section 422(b) of the
Code.
|
1:11
|
The
term “Initial Holder,” with respect to an Option or Right granted under
the Plan, shall mean the executive or other key employee of the
Corporation granted the Option or
Right.
|
1:12
|
The
term “Limited Stock Appreciation Right” shall mean a limited tandem stock
appreciation right that entitles the holder to receive cash upon a Change
in Control pursuant to Article 10:00 of the
Plan.
|
1:13
|
The
term “Non-Qualified Stock Option” shall mean any Option granted pursuant
to the Plan that is not an Incentive Stock
Option.
|
1:14
|
The
term “Option” or “Stock Option” shall mean a right granted pursuant to the
Plan to purchase shares of Common Stock, and shall include the terms
Incentive Stock Option and Non-Qualified Stock
Option.
|
1:15
|
The
term “Option Agreement” shall mean the written agreement representing
Options granted pursuant to the Plan as contemplated by Article 6:00
of the Plan.
|
1:16
|
The
term “Option Holder” shall mean the Initial Holder so long as he or she
holds an Option initially granted to the Initial Holder, and thereafter
shall mean the beneficiary or the Immediate Family Member to whom the
Option has been transferred in accordance with Section 6:05 of the
Plan.
|
1:17
|
The
term “Plan” shall mean The Black & Decker 2003 Stock Option Plan
as approved by the Board of Directors on February 13, 2003, and adopted by
the stockholders of the Corporation at the 2003 Annual Meeting of
Stockholders, as the same may be amended from time to
time.
|
1:18
|
The
term “Rights” shall include Stock Appreciation Rights and Limited Stock
Appreciation Rights.
|
1:19
|
The
term “Section 162(m) Regulations” shall mean the regulations adopted
pursuant to Section 162(m) of the
Code.
|
1:20
|
The
term “Stock Appreciation Right” shall mean a right to receive cash or
shares of Common Stock pursuant to Article 8:00 of the
Plan.
|
1:21
|
The
term “Stock Appreciation Right Agreement” shall mean the written agreement
representing Stock Appreciation Rights granted pursuant to the Plan as
contemplated by Article 8:00 of the
Plan.
|
1:22
|
The
term “Stock Appreciation Right Base Price” shall mean the base price for
determining the value of a Stock Appreciation Right under Section 8:02 of
the Plan, which Stock Appreciation Right Base Price shall be established
by the Committee at the time of the grant of Stock Appreciation Rights
pursuant to the Plan and shall not be less than the Fair Market Value of a
share of Common Stock on the date of grant. If the Committee
does not establish a specific Stock Appreciation Right Base Price at the
time of grant, the Stock Appreciation Right Base Price shall be equal to
the Fair Market Value of a share of Common Stock on the date of grant of
the Stock Appreciation Right.
|
1:23
|
The
term “Stock Appreciation Right Holder” shall mean the Initial Holder so
long as he or she holds a Stock Appreciation Right initially granted to
the Initial Holder, and thereafter shall mean the beneficiary or the
Immediate Family Member to whom the Stock Appreciation Right has been
transferred in accordance with Section 8:05 of the
Plan.
|
1:24
|
The
term “subsidiary” or “subsidiaries” shall mean a corporation, partnership,
limited liability company, joint venture, or other legal entity of which
the Corporation, either directly or together with any other subsidiary of
the Corporation, owns more than 50% of the voting power in the election of
directors or their equivalents.
|
2:01
|
The
Plan shall become effective upon stockholder approval, provided that such
approval is received on or before May 31, 2003, and provided further that
the Committee may grant Options or Rights pursuant to the Plan prior to
stockholder approval if such Options or Rights by their terms are
contingent upon subsequent stockholder approval of the
Plan.
|
3:01
|
The
Plan shall be administered by the
Committee.
|
3:02
|
The
Committee may establish, from time to time and at any time, subject to the
limitations of the Plan as set forth herein, such rules and regulations
and amendments and supplements thereto as it deems necessary to
comply with applicable law and regulation and for the proper
administration of the Plan.
|
3:03
|
The
Committee shall from time to time determine the names of those executives
and other key employees who, in its opinion, should receive Options or
Rights, and shall determine the numbers of shares on which Options should
be granted or upon which Rights should be based to each such person and
the nature of the Options or Rights to be granted, including without
limitation whether the Options or Rights shall be transferable in
accordance with the terms and conditions provided in Section 6:12 or
Section 8:11 of the Plan.
|
3:04
|
Options
and Rights shall be granted by the Corporation only upon the prior
approval of the Committee and upon the execution of an Option Agreement or
Stock Appreciation Right Agreement between the Corporation and the Initial
Holder.
|
3:05
|
The
Committee’s interpretation and construction of the provisions of the Plan
and the rules and regulations adopted by the Committee shall be
final. No member of the Committee or the Board of Directors
shall be liable for any action taken or determination made, in respect of
the Plan, in good faith.
|
4:01
|
Participation
in the Plan shall be limited to such executives and other key employees of
the Corporation and its subsidiaries who at the date of grant of an Option
or Right are regular, full-time employees of the Corporation or any of its
subsidiaries and who shall be designated by the Committee together
with any permitted transferees in accordance with the terms and conditions
of the Plan.
|
4:02
|
No
member of the Board of Directors who is not also an employee shall be
eligible to participate in the Plan. No employee who owns
beneficially more than 10% of the total combined voting power of all
classes of stock of the Corporation shall be eligible to participate in
the Plan.
|
4:03
|
No
employee may be granted, in any calendar year, Options or Stock
Appreciation Rights exceeding 1,000,000 in the aggregate under the
Plan.
|
5:01
|
There
shall be reserved for the granting of Options or Stock Appreciation Rights
pursuant to the Plan and for issuance and sale pursuant to such Options or
Stock Appreciation Rights 5,000,000 shares of Common Stock. To
determine the number of shares of Common Stock available at any time for
the granting of Options or Stock Appreciation Rights, there shall be
deducted from the total number of reserved shares of Common Stock the
number of shares of Common Stock in respect of which Options have been
granted pursuant to the Plan that are still outstanding or have been
exercised. The shares of Common Stock to be issued upon
the exercise of Options or Stock Appreciation Rights granted pursuant to
the Plan shall be made available from the authorized and unissued shares
of Common Stock. If for any reason shares of Common Stock as to
which an Option has been granted cease to be subject to purchase
thereunder, then such shares of Common Stock again shall be available for
issuance pursuant to the exercise of Options or Stock Appreciation Rights
pursuant to the Plan. Except as provided in Section 5:03 of the
Plan, however, the aggregate number of shares of Common Stock that may be
issued upon the exercise of Options and Stock Appreciation Rights pursuant
to the Plan shall not exceed 5,000,000 shares and no more than 5,000,000
Stock Appreciation Rights shall be granted pursuant to the
Plan.
|
5:02
|
Proceeds
from the purchase of shares of Common Stock upon the exercise of Options
granted pursuant to the Plan shall be used for the general business
purposes of the Corporation.
|
5:03
|
Subject
to the provisions of Section 10:01 of the Plan, in the event of
reorganization, recapitalization, stock split, stock dividend, combination
of shares of Common Stock, merger, consolidation, share exchange,
acquisition of property or stock, or any change in the capital
structure of the Corporation, the Committee shall make such adjustments as
may be appropriate in the number of Options or Stock Appreciation
Rights that may be granted to an employee in any calendar year, in the
number and kind of shares reserved for purchase by executives or other key
employees, in the number, kind and price of shares covered by Options and
Stock Appreciation Rights granted pursuant to the Plan but not then
exercised, and in the number of Rights, if any, granted pursuant to the
Plan but not then exercised.
|
6:01
|
Each
Option granted pursuant to the Plan shall be evidenced by an Option
Agreement in such form and with such terms and conditions (including,
without limitation, non-compete, confidentiality or other similar
provisions or provisions relating to transfer) as the Committee from time
to time may determine. The right of an Option Holder to
exercise his, her or its Option shall at all times be subject to the terms
and conditions set forth in the respective Option
Agreement.
|
6:02
|
The
exercise price per share for Options shall be established by the Committee
at the time of the grant of Options pursuant to the Plan and shall not be
less than the Fair Market Value of a share of Common Stock on the date on
which the Option is granted. If the Committee does not
establish a specific exercise price per share at the time of grant, the
exercise price per share shall be equal to the Fair Market Value of a
share of Common Stock on the date of grant of the
Options.
|
6:03
|
Each
Option, subject to the other limitations set forth in the Plan, may extend
for a period of up to 10 years from the date on which it is
granted. The term of each Option shall be determined by the
Committee at the time of grant of the Option, provided that if no term is
established by the Committee the term of the Option shall be 10 years from
the date on which it is granted.
|
6:04
|
Unless
otherwise provided by the Committee, the number of shares of Common Stock
subject to each Option shall be divided into four installments of 25%
each. The first installment shall be exercisable 12 months
after the date the Option was granted, and each succeeding installment
shall be exercisable 12 months after the date the immediately preceding
installment became exercisable. If an Option Holder does not
purchase the full number of shares of Common Stock that he, she or it at
any time has become entitled to purchase, the Option Holder may purchase
all or any part of those shares of Common Stock at any subsequent time
during the term of the Option.
|
6:05
|
Options
shall be non-transferable and non-assignable, except that (i) Options may
be transferred by testamentary instrument or by the laws of descent and
distribution, and (ii) subject to the terms and conditions of the Option
Agreement or any other terms and conditions imposed by the Committee from
time to time, Options may be transferred in accordance with the terms and
conditions provided in Section 6:12 of the Plan if the applicable Option
Agreement or other action of the Committee expressly provides that the
Options are transferable.
|
6:06
|
Upon
voluntary or involuntary termination of an Initial Holder’s employment,
his or her Option (including any Option transferred in accordance with the
terms and conditions provided in Section 6:12 of the Plan) and all rights
thereunder shall terminate effective at the close of business on the
date the Initial Holder ceases to be a regular, full-time employee of the
Corporation or any of its subsidiaries, except (i) to the extent
previously exercised, (ii) as provided in Sections 6:07, 6:08, and 6:09 of
the Plan, and (iii) in the case of involuntary termination of employment,
for a period of 30 days thereafter the Option Holder shall be entitled to
exercise that portion of the Option that was exercisable at the close of
business on the date the Initial Holder ceased to be a regular, full-time
employee of the Corporation or any of its subsidiaries, provided that in
no event may any Option be exercised after the expiration of the term of
the Option.
|
6:07
|
In
the event an Initial Holder (i) ceases to be an executive or other key
employee of the Corporation or any of its subsidiaries due to involuntary
termination, (ii) takes a leave of absence from the
Corporation or any of its subsidiaries for personal reasons or as a
result of entry into the armed forces of the United States, or any of the
departments or agencies of the United States government, or (iii)
terminates employment by reason of illness, disability, or other special
circumstance, the Committee may consider his or her case and may take
such action in respect of the related Option Agreement as it may deem
appropriate under the circumstances, including accelerating the time
previously granted Options may be exercised and extending the time
following the Initial Holder’s termination of employment during which
the Option Holder is entitled to purchase the shares of Common Stock
subject to such Options, provided that in no event may any Option be
exercised after the expiration of the term of the
Option.
|
6:08
|
If
an Initial Holder dies during the term of his or her Option without the
Option having been exercised in full, (i) the executor or
administrator of his or her estate or the person who inherits the
right to exercise the Option by bequest or inheritance in the event the
Initial Holder was the Option Holder at the date of death or (ii) the
Option Holder in the event the Option had been transferred in accordance
with the terms and conditions provided in Section 6:12 of the Plan, shall
have the right within three years of the Initial Holder’s death to
purchase the number of shares of Common Stock that the deceased Initial
Holder (or Option Holder, as the case may be) was entitled to purchase at
the date of death, after which the Option shall lapse, provided that in no
event may any Option be exercised after the expiration of the term of the
Option.
|
6:09
|
If
an Initial Holder’s employment is terminated without his or her Option
having been exercised in full and (i) the Initial Holder is 62 years
of age or older, or (ii) the Initial Holder has been employed by the
Corporation or any of its subsidiaries for at least 10 years and the
Initial Holder’s age plus years of such employment total not less
than 55 years, then such Initial Holder (or the Option Holder in the event
the Option had been transferred in accordance with the terms and
conditions provided in Section 6:12 of the Plan) shall have the right
within three years of the Initial Holder’s termination of employment to
purchase the number of shares of Common Stock that the Initial Holder (or
Option Holder, as the case may be) was entitled to purchase at the date of
termination, after which the Option shall lapse, provided that in no
event may any Option be exercised after the expiration of the term of
the Option. Notwithstanding the foregoing and only with respect
to Options granted in April 2009 or afterwards, if an Initial Holder’s
employment is terminated without his or her Option having been exercised
in full and the Initial Holder is 60 years of age or older, then such
Initial Holder (or the Option Holder in the event the Option had been
transferred in accordance with Section 6:12 of the Plan) shall have the
right during the remaining term of the Option to purchase the number of
shares of Common Stock that the Initial Holder (or Option Holder, as the
case may be) was entitled to purchase at the date of the Initial Holder’s
termination of employment, after which the Option shall
lapse.
|
6:10
|
The
granting of an Option pursuant to the Plan shall not constitute or be
evidence of any agreement or understanding, express or implied, on the
part of the Corporation or any of its subsidiaries to employ the
Initial Holder for any specified
period.
|
6:11
|
In
addition to the general terms and conditions set forth in this Article
6:00 in respect of Options granted pursuant to the Plan, Incentive Stock
Options granted pursuant to the Plan shall be subject to the following
additional terms and conditions:
|
|
(a)
|
The
aggregate fair market value (determined at the time the Incentive Stock
Option is granted) of the shares of Common Stock in respect of which
“incentive stock options” under Section 422 of the Code are exercisable
for the first time by the Option Holder during any calendar year (under
all such plans of the Corporation and its subsidiaries) shall not exceed
$100,000;
|
|
(b)
|
The
Option Agreement in respect of an Incentive Stock Option may contain any
other terms and conditions specified by the Board of Directors that are
not inconsistent with the Plan, except that such terms and conditions must
be consistent with the requirements for “incentive stock options” under
Section 422 of the Code; and
|
|
(c)
|
Incentive
Stock Options shall not be transferable in accordance with the terms and
conditions provided in Section 6:12 of the
Plan.
|
6:12
|
The
Committee may provide, in the original grant of a Non-Qualified Stock
Option or in an amendment or supplement to a previous grant, that some or
all of the Non-Qualified Stock Options granted under the Plan are
transferable by the Initial Holder to an Immediate Family Member of the
Initial Holder, provided that (i) the Option Agreement, as it may be
amended from time to time, expressly so provides or the Committee
otherwise designates the Option as transferable, (ii) the transfer by the
Initial Holder is a bona fide gift without consideration, (iii) the
transfer is irrevocable, (iv) the Initial Holder and any such transferee
provides such documentation or other information concerning the transfer
or the transferee as the Committee or any employee of the Corporation
acting on behalf of the Committee may from time to time request, and (v)
the Initial Holder or the Option Holder complies with all of the terms and
conditions (including, without limitation, any further restrictions or
limitations) included in the Option Agreement. Any
Non-Qualified Stock Option transferred in accordance with the terms and
conditions provided in this Section 6:12 shall continue to be subject to
the same terms and conditions that were applicable to such Non-Qualified
Stock Option prior to the transfer. Notwithstanding any other
provisions of the Plan, the Corporation shall not be required to honor any
exercise of an Option by an Immediate Family Member of an Option
transferred in accordance with the terms and conditions provided in this
Section 6:12 unless and until payment or provision for payment of any
applicable withholding taxes has been
made.
|
7:01
|
An
Option Holder (or other person or persons, if any, entitled to exercise an
Option hereunder) desiring to exercise an Option granted pursuant to
the Plan as to all or part of the shares of Common Stock covered by the
Option shall (i) notify either the Corporation at its principal office at
701 East Joppa Road, Towson, Maryland 21286, or the third party retained
by the Corporation to administer the Plan to that effect, specifying the
number of shares of Common Stock to be purchased and the method of payment
therefor, and (ii) make payment or provision for payment for the shares of
Common Stock so purchased in accordance with this Article
7:00.
|
7:02
|
Payment
or provision for payment shall be made as
follows:
|
|
(a)
|
The
Option Holder shall deliver to the Corporation at the address set
forth in Section 7:01 of the Plan United States currency in an amount
equal to the aggregate purchase price of the shares of Common Stock as to
which such exercise relates; or
|
|
(b)
|
The
Option Holder shall tender to the Corporation shares of Common Stock
already owned by the Option Holder that, together with any cash tendered
therewith, have an aggregate fair market value (determined based
on the Fair Market Value of a share of Common Stock on the date the notice
set forth in Section 7:01 of the Plan is received by the Corporation)
equal to the aggregate purchase price of the shares of Common Stock as to
which such exercise relates; or
|
|
(c)
|
The
Option Holder shall deliver irrevocable instructions to a broker to
deliver promptly to the Corporation the amount of sale or loan proceeds
necessary to pay the aggregate purchase price of the shares of Common
Stock as to which such exercise relates and to sell the shares of Common
Stock to be issued upon exercise of the Option and deliver the cash
proceeds less commissions and brokerage fees to the Option Holder or to
deliver the remaining shares of Common Stock to the Option
Holder.
|
|
Notwithstanding
the foregoing provisions, the Committee, in granting Options pursuant to
the Plan, may limit the methods in which an Option may be exercised by any
person and, in processing any purported exercise of an Option granted
pursuant to the Plan, may refuse to recognize the method of exercise
selected by the Option Holder (other than the method of exercise set forth
in Section 7:02(a) of the Plan) if, (A) in the opinion of counsel to the
Corporation, (i) the Initial Holder or the Option Holder is or
within the six months preceding such exercise was subject to reporting
under Section 16(a) of the Exchange Act and (ii) there is a substantial
likelihood that the method of exercise selected by the Option Holder would
subject the Initial Holder or the Option Holder to a substantial risk of
liability under Section 16 of the Exchange Act, (B) in the
opinion of the Committee, the method of exercise could have an adverse tax
or accounting effect to the Corporation, or (C) in the opinion of counsel
to the Corporation, the method of exercise selected by the Option Holder
would subject the Corporation to a risk of liability under the Exchange
Act.
|
7:03
|
In
addition to the alternative methods of exercise set forth in Section 7:02
of the Plan, holders of Non-Qualified Stock Options shall be entitled, at
or prior to the time the notice provided for in Section 7:01 of the Plan
is provided to the Corporation, to elect to have the Corporation withhold
from the shares of Common Stock to be delivered upon exercise of the
Non-Qualified Stock Option that number of shares of Common Stock
(determined based on the Fair Market Value of a share of Common Stock
on the date the notice set forth in Section 7:01 of the Plan is received
by the Corporation) necessary to satisfy any withholding taxes
attributable to the exercise of the Non-Qualified Stock
Option. The maximum number of shares that an Option Holder may
elect to have withheld from the shares of Common Stock otherwise
deliverable upon exercise shall be the number of shares that have an
aggregate fair market value (based on the Fair Market Value of a share of
Common Stock on the date of exercise) equal to the dollar amount of the
minimum statutory withholding for federal, state, and local taxes,
including payroll taxes, payable by the Option
Holder. Alternatively, such holder of a Non-Qualified Stock
Option may elect to deliver previously owned shares of Common Stock (which
shares have been held for at least six months) upon exercise of the
Non-Qualified Stock Option to satisfy any withholding taxes attributable
to the exercise of the Non-Qualified Stock
Option. Notwithstanding the foregoing provisions, the
Committee may include in the Option Agreement relating to any such
Non-Qualified Stock Option provisions limiting or eliminating the
Option Holder’s ability to pay his or her withholding tax obligation by
withholding or delivering shares of Common Stock or, if no such provisions
are included in the Option Agreement but in the opinion of the Committee
such withholding or delivery of shares could have an adverse tax or
accounting effect to the Corporation, at or prior to exercise of the
Non-Qualified Stock Option the Committee may so limit or eliminate
the Option Holder’s ability to pay his or her withholding tax obligation
with shares of Common Stock. Notwithstanding the foregoing
provisions, a holder of a Non-Qualified Stock Option may not elect any of
the methods of satisfying his or her withholding tax obligation in
respect of any exercise if, in the opinion of counsel to the Corporation,
(i) the Initial Holder or the holder of the Non-Qualified Stock Option is
or within the six months preceding such exercise was subject to reporting
under Section 16(a) of the Exchange Act and (ii) there is a substantial
likelihood that the election or timing of the election would subject the
Initial Holder or the holder of the Non-Qualified Stock Option to a
substantial risk of liability under Section 16 of the Exchange
Act.
|
7:04
|
An
Option Holder at any time may elect in writing to abandon an Option in
respect of all or part of the number of shares of Common Stock as to which
the Option shall not have been
exercised.
|
7:05
|
An
Option Holder shall have none of the rights of a stockholder of the
Corporation until the shares of Common Stock covered by the Option are
issued upon exercise of the Option.
|
8:01
|
Each
Stock Appreciation Right granted pursuant to the Plan shall be evidenced
by a Stock Appreciation Right Agreement in such form and with such terms
and conditions (including, without limitation, non-compete,
confidentiality or other similar provisions or provisions relating to
transfer) as the Committee from time to time may
determine. Notwithstanding the foregoing provision, Stock
Appreciation Rights granted in tandem with a related Option shall be
evidenced by the Option Agreement in respect of the related
Option. The right of a Stock Appreciation Right Holder to
exercise his, her or its Stock Appreciation Right shall at all times be
subject to the terms and conditions set forth in the respective Stock
Appreciation Right Agreement.
|
8:02
|
Each
Stock Appreciation Right shall entitle the holder, subject to the terms
and conditions of the Plan, to receive upon exercise of the Stock
Appreciation Right an amount, payable in cash or shares of Common Stock
(determined based on the Fair Market Value of a share of Common Stock on
the date the notice set forth in Section 9:01 of the Plan is received
by the Corporation), equal to the Fair Market Value of a share of Common
Stock on the date of receipt by the Corporation of the notice required by
Section 9:01 of the Plan less the Stock Appreciation Right Base
Price. Notwithstanding the foregoing provision, each Stock
Appreciation Right that is granted in tandem with a related Option shall
entitle the holder, subject to the terms and conditions of the Plan, to
surrender to the Corporation for cancellation all or a portion of the
related Option, but only to the extent such Stock Appreciation Right and
related Option then are exercisable, and to be paid therefor an amount,
payable in cash or shares of Common Stock (determined based on the Fair
Market Value of a share of Common Stock on the date the notice set forth
in Section 9:01 of the Plan is received by the Corporation), equal to
the Fair Market Value of a share of Common Stock on the date of receipt by
the Corporation of the notice required by Section 9:01 of the Plan
less the Stock Appreciation Right Base
Price.
|
8:03
|
Each
Stock Appreciation Right, subject to the other limitations set forth in
the Plan, may extend for a period of up to 10 years from the date on which
it is granted. The term of each Stock Appreciation Right shall
be determined by the Committee at the time of grant of the Stock
Appreciation Right, provided that if no term is established by the
Committee the term of the Stock Appreciation Right shall be 10 years from
the date on which it is granted.
|
8:04
|
Unless
otherwise provided by the Committee, the number of Stock Appreciation
Rights granted pursuant to each Stock Appreciation Right Agreement shall
be divided into four installments of 25% each. The first
installment shall be exercisable 12 months after the date the Stock
Appreciation Right was granted, and each succeeding installment shall
be exercisable 12 months after the date the immediately preceding
installment became exercisable. If a Stock Appreciation Right
Holder does not exercise the Stock Appreciation Right to the extent that
he, she or it at any time has become entitled to exercise the Stock
Appreciation Right, the Stock Appreciation Right Holder may exercise all
or any part of the Stock Appreciation Right at any subsequent time during
the term of the Stock Appreciation
Right.
|
8:05
|
Stock
Appreciation Rights shall be non-transferable and non-assignable, except
that (i) Stock Appreciation Rights may be transferred by testamentary
instrument or by the laws of descent and distribution, and (ii) subject to
the terms and conditions of the Stock Appreciation Right Agreement or any
other terms and conditions imposed by the Committee from time to time,
Stock Appreciation Rights may be transferred in accordance with the terms
and conditions provided in Section 8:11 of the Plan if the applicable
Stock Appreciation Right Agreement or other action of the Committee
expressly provides that the Stock Appreciation Rights are
transferable.
|
8:06
|
Upon
voluntary or involuntary termination of an Initial Holder’s employment,
his or her Stock Appreciation Rights (including any Stock Appreciation
Rights transferred in accordance with the terms and conditions provided in
Section 8:11 of the Plan) and all rights thereunder shall terminate
effective as of the close of business on the date the Initial Holder
ceases to be a regular, full-time employee of the Corporation or any of
its subsidiaries, except (i) to the extent previously exercised, (ii) as
provided in Sections 8:07, 8:08, and 8:09 of the Plan, and (iii) in the
case of involuntary termination of employment, for a period of 30 days
thereafter the Stock Appreciation Right Holder shall be entitled to
exercise that portion of each Stock Appreciation Right that was
exercisable at the close of business on the date the Initial Holder ceased
to be a regular, full-time employee of the Corporation or any of its
subsidiaries.
|
8:07
|
If
an Initial Holder (i) ceases to be an executive or other key employee of
the Corporation or any of its subsidiaries due to involuntary
termination, (ii) takes a leave of absence from the Corporation or
any of its subsidiaries for personal reasons or as a result of entry into
the armed forces of the United States, or any of the departments or
agencies of the United States government, or (iii) terminates employment
by reason of illness, disability, or other special circumstance, the
Committee may consider his or her case and may take such action in respect
of the related Stock Appreciation Right Agreement as it may deem
appropriate under the circumstances, including accelerating the time
previously granted Stock Appreciation Rights may be exercised and
extending the time following the Initial Holder’s termination of
employment during which the Stock Appreciation Right Holder is entitled to
exercise the Stock Appreciation Rights, provided that in no event may any
Stock Appreciation Right be exercised after the expiration of the term of
the Stock Appreciation Right.
|
8:08
|
If
an Initial Holder dies during the term of his or her Stock Appreciation
Right without the Stock Appreciation Right having been exercised in full,
(i) the executor or administrator of his or her estate or the person who
inherits the right to exercise the Stock Appreciation Right by
bequest or inheritance in the event the Initial Holder was the Stock
Appreciation Right Holder at the date of death or (ii) the Stock
Appreciation Right Holder in the event the Stock Appreciation Right had
been transferred in accordance with the terms and conditions provided in
Section 8:11 of the Plan, shall have the right within three years of the
Initial Holder’s death to exercise the Stock Appreciation Rights that the
Initial Holder (or Stock Appreciation Right Holder, as the case may be)
was entitled to purchase at the date of death, after which the Stock
Appreciation Right shall lapse, provided that in no event may any Stock
Appreciation Right be exercised after the expiration of the term of
the Stock Appreciation Right.
|
8:09
|
If
an Initial Holder’s employment is terminated without his or her Stock
Appreciation Right having been exercised in full and (i) the Initial
Holder is 62 years of age or older, or (ii) the Initial Holder has been
employed by the Corporation or any of its subsidiaries for at least 10
years and the Initial Holder’s age plus years of such employment total not
less than 55 years, then such Initial Holder (or the Stock Appreciation
Right Holder in the event the Stock Appreciation Right had been
transferred in accordance with the terms and conditions provided in
Section 8:11 of the Plan) shall have the right within three years of the
Initial Holder’s termination of employment to exercise the Stock
Appreciation Rights that the Initial Holder (or Stock Appreciation Right
Holder, as the case may be) was entitled to exercise at the date of
termination, after which the Stock Appreciation Right shall lapse,
provided that in no event may any Stock Appreciation Right be exercised
after the expiration of the term of the Stock Appreciation
Right.
|
8:10
|
The
granting of a Stock Appreciation Right pursuant to the Plan shall not
constitute or be evidence of any agreement or understanding, expressed or
implied, on the part of the Corporation or any of its subsidiaries to
employ the Initial Holder for any specified
period.
|
8:11
|
The
Committee may provide, in the original grant of a Stock Appreciation Right
or in an amendment or supplement to a previous grant, that some or all of
the Stock Appreciation Rights granted under the Plan are transferable by
the Initial Holder to an Immediate Family Member of the Initial Holder,
provided that (i) the Stock Appreciation Right Agreement, as it may be
amended from time to time, expressly so provides or the Committee
otherwise designates the Stock Appreciation Right as transferable, (ii)
the transfer by the Initial Holder is a bona fide gift without
consideration, (iii) the transfer is irrevocable, (iv) the Initial
Holder and any such transferee provides such documentation or other
information concerning the transfer or the transferee as the Committee or
any employee of the Corporation acting on behalf of the Committee may from
time to time request, and (v) the Initial Holder or the Stock
Appreciation Right Holder complies with all of the terms and conditions
(including, without limitation, any further restrictions or limitations)
included in the Stock Appreciation Right Agreement. Any Stock
Appreciation Right transferred in accordance with the terms and conditions
provided in this Section 8:11 shall continue to be subject to the same
terms and conditions that were applicable to such Stock Appreciation Right
prior to the transfer. Notwithstanding any other provisions of
the Plan, the Corporation shall not be required to honor any exercise of a
Stock Appreciation Right by an Immediate Family Member of a Stock
Appreciation Right transferred in accordance with the terms and conditions
provided in this Section 8:11 unless and until payment or provision for
payment of any applicable withholding taxes has been
made.
|
9:01
|
A
Stock Appreciation Right Holder (or other person or persons, if any,
entitled to exercise a Stock Appreciation Right hereunder) desiring to
exercise a Stock Appreciation Right granted pursuant to the Plan shall
notify the Corporation in writing at its principal office at 701 East
Joppa Road, Towson, Maryland 21286, to that effect, specifying the number
of Stock Appreciation Rights to be exercised. Such written
notice may be given by means of a facsimile transmission. If a
facsimile transmission is used, the Stock Appreciation Right Holder should
mail the original executed copy of the written notice to the Corporation
promptly thereafter.
|
9:02
|
The
Committee in its sole and absolute discretion shall determine whether a
Stock Appreciation Right shall be settled upon exercise in cash or in
shares of Common Stock. The Committee, in making such a
determination, may from time to time adopt general guidelines or
determinations as to whether Stock Appreciation Rights shall be settled in
cash or in shares of Common Stock.
|
10:01
|
Notwithstanding
any other provision of the Plan, the Committee, in its sole and absolute
discretion, may grant Limited Stock Appreciation Rights entitling Option
Holders to receive, in connection with a Change in Control, a cash payment
in cancellation of all of their Options that are outstanding on the
date the Change in Control occurs (whether or not such Options are then
presently exercisable), which payment shall be equal to the number of
shares covered by the cancelled Options multiplied by the excess over the
exercise price of the Options of the higher of the (i) Fair Market
Value of a share of Common Stock on the date of the Change in Control or
(ii) the highest per share price paid for the shares of Common Stock
in connection with the Change in Control (with the value of any non-cash
consideration paid in connection with the Change in Control to be
determined by the Committee in its sole and absolute discretion and
if the Committee, in its sole and absolute discretion, determines that
such valuation will comply with Section 409A of the Code). For
purposes of this Section 10:01 as well as the other provisions of this
Plan, once an Option or portion of an Option has terminated, lapsed or
expired, or has been abandoned, in accordance with the provisions of the
Plan, the Option (or the portion of the Option) that has terminated,
lapsed or expired, or has been abandoned, shall cease to be
outstanding. Limited Stock Appreciation Rights shall not
be exercisable at the discretion of the Option Holder but shall
automatically be exercised upon a Change in
Control.
|
10:02
|
A
“Change in Control” shall mean a change in control of the Corporation of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act,
whether or not the Corporation is in fact required to comply therewith,
provided that, without limitation, such a change in control shall be
deemed to have occurred if (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or
other fiduciary holding securities under an employee benefit plan of the
Corporation or any of its subsidiaries, or a corporation owned,
directly or indirectly, by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the
Corporation, is or becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 20% or more of the combined voting power of
the Corporation’s then outstanding securities; (ii) during any period
of two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors and any new director (other than a
director designated by a person who has entered into an agreement with the
Corporation to effect a transaction described in clauses (i) or (iv) of
this Section 10.02) whose election by the Board of Directors or
nomination for election by the Corporation’s stockholders was
approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; (iii) the Corporation enters
into an agreement, the consummation of which would result in the
occurrence of a Change in Control; or (iv) the stockholders of the
Corporation approve a merger, share exchange or consolidation of the
Corporation with any other corporation or entity, other than a merger,
share exchange or consolidation that would result in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 60% of
the combined voting power of the voting securities of the Corporation or
such surviving entity outstanding immediately after the merger, share
exchange or consolidation, or the stockholders of the Corporation
approve a plan of complete liquidation of the Corporation or an agreement
for the sale or disposition by the Corporation of all or substantially all
the Corporation’s assets.
|
10:03
|
Limited
Stock Appreciation Rights shall be non-transferable and non-assignable,
except that Limited Stock Appreciation Rights shall automatically be
transferred and assigned in tandem with a transfer of the related Options
in accordance with Section 6:05 of the
Plan.
|
11:01
|
The
Board of Directors shall have the right at any time and from time to time
to amend, modify, or discontinue the Plan provided that, except as
provided in Section 5:03 of the Plan, no such amendment, modification, or
discontinuance of the Plan shall (i) revoke or alter the terms of any
valid Option, Stock Appreciation Right, or Limited Stock Appreciation
Right previously granted pursuant to the Plan, (ii) increase the number of
shares of Common Stock to be reserved for issuance and sale pursuant to
Options or Stock Appreciation Rights granted pursuant to the Plan, (iii)
decrease the price determined pursuant to the provisions of Section 6:02
of the Plan or increase the amount of cash or shares of Common Stock that
a Stock Appreciation Right Holder is entitled to receive upon exercise of
a Stock Appreciation Right, (iv) change the class of employee to whom
Options or Stock Appreciation Rights may be granted pursuant to the Plan,
(v) provide for Options or Stock Appreciation Rights exercisable more than
10 years after the date granted or (vi) increase the number of Options or
Stock Appreciation Rights that may be granted to an employee in any
calendar year under Section 4.03 of the Plan. If an amendment
would (i) materially increase the benefits accruing to participants under
the Plan, (ii) materially increase the aggregate number of securities that
may be issued under the Plan, or (iii) materially modify the requirements
as to eligibility for participation in the Plan, then to the extent
required by applicable law or deemed necessary or advisable by the
Committee or the Board of Directors, the amendment shall be subject to
stockholder approval.
|
12:01
|
The
Plan and the grant and exercise of Options, Stock Appreciation Rights, and
Limited Stock Appreciation Rights pursuant to the Plan shall be subject to
all applicable governmental laws and
regulations. Notwithstanding any other provision of the Plan to
the contrary, the Board of Directors may in its sole and absolute
discretion make such changes in the Plan as may be required to conform the
Plan to such laws and regulations.
|
13:01
|
No
Option or Stock Appreciation Right shall be granted pursuant to the Plan
after the close of business on April 29,
2013.
|
Registration
Statement Number
|
Description |
2-93025
|
Form
S-8
|
2-96778
|
Form
S-8
|
2-97283
|
Form
S-8
|
33-16669
|
Form
S-8
|
33-12853
|
Form
S-3
|
33-19930
|
Form
S-3
|
33-39553
|
Form
S-8
|
33-46212
|
Form
S-3
|
33-47889
|
Form
S-3
|
33-55663
|
Form
S-8
|
33-62565
|
Form
S-8
|
33-62567
|
Form
S-8
|
33-62575
|
Form
S-8
|
333-42346
|
Form
S-8
|
333-42582
|
Form
S-8
|
333-64326
|
Form
S-8
|
333-110279
|
Form
S-3
|
333-117607
|
Form
S-3
|
333-153646
|
Form
S-3
|
333-162956
|
Form
S-8
|
333-163509
|
Form
S-4
|
|
|||
|
|
||
/s/ Ermst & Young LLP | |||
Baltimore, Maryland | |||
March 12, 2010 |
Contact:
|
Kate
White
|
|
Director,
Investor Relations
|
||
kwhite@stanleyworks.com
|
||
(860)
827-3833
|
YEAR
ENDED DECEMBER 31,
|
2009
|
2008
|
2007
|
|||||||||
SALES
|
$
|
4,775.1
|
$
|
6,086.1
|
$
|
6,563.2
|
||||||
Cost of goods sold
|
3,188.6
|
4,087.7
|
4,336.2
|
|||||||||
Selling, general, and administrative expenses
|
1,266.4
|
1,521.6
|
1,625.8
|
|||||||||
Merger-related expenses
|
58.8
|
—
|
—
|
|||||||||
Restructuring and exit costs
|
11.9
|
54.7
|
19.0
|
|||||||||
OPERATING
INCOME
|
249.4
|
422.1
|
582.2
|
|||||||||
Interest expense (net of interest income of
$7.9 for 2009, $38.4 for 2008, and $19.8 for 2007)
|
83.8
|
62.4
|
82.3
|
|||||||||
Other
(income) expense
|
(4.8
|
)
|
(5.0
|
)
|
2.3
|
|||||||
EARNINGS
BEFORE INCOME TAXES
|
170.4
|
364.7
|
497.6
|
|||||||||
Income taxes (benefit)
|
37.9
|
71.1
|
(20.5
|
)
|
||||||||
NET
EARNINGS
|
$
|
132.5
|
$
|
293.6
|
$
|
518.1
|
||||||
NET
EARNINGS PER COMMON SHARE – BASIC
|
$
|
2.18
|
$
|
4.83
|
$
|
7.96
|
||||||
NET
EARNINGS PER COMMON SHARE – ASSUMING DILUTION
|
$
|
2.17
|
$
|
4.77
|
$
|
7.78
|
DECEMBER
31,
|
2009
|
2008
|
||||||
ASSETS
|
||||||||
Cash
and cash equivalents
|
$
|
1,083.2
|
$
|
277.8
|
||||
Trade
receivables, less allowances of $45.8 for 2009 and $39.1 for
2008
|
832.8
|
924.6
|
||||||
Inventories
|
777.1
|
1,024.2
|
||||||
Other
current assets
|
308.8
|
377.0
|
||||||
TOTAL
CURRENT ASSETS
|
3,001.9
|
2,603.6
|
||||||
PROPERTY,
PLANT, AND EQUIPMENT
|
473.4
|
527.9
|
||||||
GOODWILL
|
1,230.0
|
1,223.2
|
||||||
OTHER
ASSETS
|
789.9
|
828.6
|
||||||
$
|
5,495.2
|
$
|
5,183.3
|
|||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Short-term
borrowings
|
$
|
—
|
$
|
83.3
|
||||
Current
maturities of long-term debt
|
—
|
.1
|
||||||
Trade
accounts payable
|
403.2
|
453.1
|
||||||
Other
current liabilities
|
792.7
|
947.4
|
||||||
TOTAL
CURRENT LIABILITIES
|
1,195.9
|
1,483.9
|
||||||
LONG-TERM
DEBT
|
1,715.0
|
1,444.7
|
||||||
POSTRESTIREMENT
BENEFITS
|
760.4
|
669.4
|
||||||
OTHER
LONG-TERM LIABILITIES
|
524.8
|
460.5
|
||||||
STOCKHOLDERS’
EQUITY
|
||||||||
Common
stock (outstanding: December 31, 2009 – 61,645,196 shares;
December 31, 2008 – 60,092,726 shares)
|
30.8
|
30.0
|
||||||
Capital
in excess of par value
|
119.1
|
14.3
|
||||||
Retained
earnings
|
1,622.0
|
1,536.8
|
||||||
Accumulated
other comprehensive income (loss)
|
(472.8
|
) |
(456.3
|
) | ||||
TOTAL
STOCKHOLDERS’ EQUITY
|
1,299.1
|
1,124.8
|
||||||
$
|
5,495.2
|
$
|
5,183.3
|
OUTSTANDING
COMMON
SHARES
|
PAR
VALUE
|
CAPITAL IN
EXCESS OF
PAR VALUE
|
RETAINED
EARNINGS
|
ACCUMULATED
OTHER
COMPREHENSIVE
INCOME
(LOSS)
|
TOTAL
STOCKHOLDERS’
EQUITY
|
||||||||||||||
BALANCE
AT DECEMBER 31, 2006
|
66,734,843
|
$
|
33.4
|
$
|
—
|
$
|
1,473.0
|
$
|
(342.8
|
)
|
$
|
1,163.6
|
|||||||
Comprehensive
income (loss):
|
|||||||||||||||||||
Net earnings
|
—
|
—
|
—
|
518.1
|
—
|
518.1
|
|||||||||||||
Net loss on derivative instruments (net of tax)
|
—
|
—
|
—
|
—
|
(25.4
|
)
|
(25.4
|
)
|
|||||||||||
Minimum pension liability adjustment (net of tax)
|
—
|
—
|
—
|
—
|
161.0
|
161.0
|
|||||||||||||
Foreign currency translation adjustments, less effect
of hedging activities (net of tax)
|
—
|
—
|
—
|
—
|
83.2
|
83.2
|
|||||||||||||
Amortization of actuarial losses and
prior
service cost
(net of tax)
|
—
|
—
|
—
|
—
|
25.7
|
25.7
|
|||||||||||||
Comprehensive
income
|
—
|
—
|
—
|
518.1
|
244.5
|
762.6
|
|||||||||||||
Cumulative
effect of adopting the new accounting
standard relating to uncertain tax positions
|
—
|
—
|
—
|
(7.3
|
) |
—
|
(7.3
|
)
|
|||||||||||
Cash
dividends on common stock ($1.68 per share)
|
—
|
—
|
—
|
(108.6
|
)
|
—
|
(108.6
|
)
|
|||||||||||
Common
stock issued under stock-based plans (net of
forfeitures)
|
1,666,123
|
.8
|
109.0
|
—
|
—
|
109.8
|
|||||||||||||
Purchase
and retirement of common stock
|
(5,477,243
|
)
|
(2.7
|
)
|
(82.0
|
)
|
(376.7
|
)
|
—
|
(461.4
|
)
|
||||||||
BALANCE
AT DECEMBER 31, 2007
|
62,923,723
|
31.5
|
27.0
|
1,498.5
|
(98.3
|
)
|
1,458.7
|
||||||||||||
Comprehensive
income (loss):
|
|||||||||||||||||||
Net
earnings
|
—
|
—
|
—
|
293.6
|
—
|
293.6
|
|||||||||||||
Net gain on derivative instruments (net of tax)
|
—
|
—
|
—
|
—
|
83.5
|
83.5
|
|||||||||||||
Minimum pension liability adjustment (net of tax)
|
—
|
—
|
—
|
—
|
(284.2
|
)
|
(284.2
|
)
|
|||||||||||
Foreign currency translation adjustments, less effect
of hedging activities (net of tax)
|
—
|
—
|
—
|
—
|
(172.1
|
)
|
(172.1
|
)
|
|||||||||||
Amortization
of actuarial losses and
prior
service cost
(net of tax)
|
—
|
—
|
—
|
—
|
14.8
|
14.8
|
|||||||||||||
Comprehensive
income (loss)
|
—
|
—
|
—
|
293.6
|
(358.0
|
)
|
(64.4
|
)
|
|||||||||||
Adoption
of new accounting standard requiring a year-
end measurement date for defined benefit pension and
other postretirement benefit plans (net of tax)
|
—
|
—
|
—
|
(5.1
|
)
|
—
|
(5.1
|
)
|
|||||||||||
Cash
dividends on common stock ($1.68 per share)
|
—
|
—
|
—
|
(101.8
|
)
|
—
|
(101.8
|
)
|
|||||||||||
Common
stock issued under stock-based plans (net of
forfeitures)
|
305,647
|
.1
|
39.6
|
—
|
—
|
39.7
|
|||||||||||||
Purchase
and retirement of common stock
|
(3,136,644
|
)
|
(1.6
|
)
|
(52.3
|
)
|
(148.4
|
)
|
—
|
(202.3
|
)
|
||||||||
BALANCE
AT DECEMBER 31, 2008
|
60,092,726
|
30.0
|
14.3
|
1,536.8
|
(456.3
|
)
|
1,124.8
|
||||||||||||
Comprehensive
income (loss):
|
|||||||||||||||||||
Net earnings
|
—
|
—
|
—
|
132.5
|
—
|
132.5
|
|||||||||||||
Net loss on derivative instruments (net of tax)
|
—
|
—
|
—
|
—
|
(53.4
|
)
|
(53.4
|
)
|
|||||||||||
Minimum pension liability adjustment (net of tax)
|
—
|
—
|
—
|
—
|
(66.8
|
)
|
(66.8
|
)
|
|||||||||||
Foreign currency translation adjustments, less effect
of hedging activities (net of tax)
|
—
|
—
|
—
|
—
|
88.4
|
88.4
|
|||||||||||||
Amortization of actuarial losses and
prior
service cost
(net of tax)
|
—
|
—
|
—
|
—
|
15.3
|
15.3
|
|||||||||||||
Comprehensive
income (loss)
|
—
|
—
|
—
|
132.5
|
(16.5
|
)
|
116.0
|
||||||||||||
Cash
dividends on common stock ($.78 per share)
|
—
|
—
|
—
|
(47.3
|
)
|
—
|
(47.3
|
)
|
|||||||||||
Common
stock issued under stock-based plans (net of
forfeitures)
|
1,799,668
|
.9
|
118.1
|
—
|
—
|
119.0
|
|||||||||||||
Purchase
and retirement of common stock
|
(247,198
|
)
|
(.1
|
)
|
(13.3
|
)
|
—
|
—
|
(13.4
|
)
|
|||||||||
BALANCE
AT DECEMBER 31, 2009
|
61,645,196
|
$
|
30.8
|
$
|
119.1
|
$
|
1,622.0
|
$
|
(472.8
|
)
|
$
|
1,299.1
|
YEAR
ENDED DECEMBER 31,
|
2009
|
2008
|
2007
|
|||||||||
OPERATING
ACTIVITIES
|
||||||||||||
Net
earnings
|
$
|
132.5
|
$
|
293.6
|
$
|
518.1
|
||||||
Adjustments
to reconcile net earnings to cash flow
from
operating activities:
|
||||||||||||
Non-cash charges and credits:
|
||||||||||||
Depreciation and amortization
|
128.0
|
136.6
|
143.4
|
|||||||||
Stock-based compensation
|
69.8
|
29.1
|
25.9
|
|||||||||
Amortization of actuarial losses and prior service costs
|
15.3
|
14.8
|
25.7
|
|||||||||
Settlement of income tax litigation
|
—
|
—
|
(153.4
|
)
|
||||||||
Restructuring and exit costs
|
11.9
|
54.7
|
19.0
|
|||||||||
Other
|
(7.5
|
)
|
.3
|
.5
|
||||||||
Changes
in selected working capital items
(net of effects of businesses acquired):
|
||||||||||||
Trade receivables
|
127.2
|
132.5
|
99.4
|
|||||||||
Inventories
|
273.3
|
67.9
|
(32.0
|
)
|
||||||||
Trade accounts payable
|
(53.1
|
)
|
(47.9
|
)
|
32.6
|
|||||||
Other current liabilities
|
(102.2
|
)
|
(141.8
|
)
|
33.3
|
|||||||
Restructuring
spending
|
(39.8
|
)
|
(25.3
|
)
|
(1.0
|
)
|
||||||
Other assets and liabilities
|
(69.8
|
)
|
(89.1
|
)
|
14.4
|
|||||||
CASH FLOW FROM OPERATING ACTIVITIES
|
485.6
|
425.4
|
725.9
|
|||||||||
INVESTING
ACTIVITIES
|
||||||||||||
Capital
expenditures
|
(63.1
|
)
|
(98.8
|
)
|
(116.4
|
)
|
||||||
Proceeds
from disposal of assets
|
3.2
|
20.4
|
13.0
|
|||||||||
Purchase
of businesses, net of cash acquired
|
—
|
(25.7
|
)
|
—
|
||||||||
Cash
outflow associated with purchase of previously acquired
business
|
(1.4
|
)
|
—
|
—
|
||||||||
Cash
inflow from hedging activities
|
196.0
|
72.4
|
2.0
|
|||||||||
Cash
outflow from hedging activities
|
(38.2
|
)
|
(29.7
|
)
|
(47.4
|
)
|
||||||
Other
investing activities, net
|
—
|
—
|
(1.0
|
)
|
||||||||
CASH FLOW FROM INVESTING ACTIVITIES
|
96.5
|
(61.4
|
)
|
(149.8
|
)
|
|||||||
FINANCING
ACTIVITIES
|
||||||||||||
Net
(decrease) increase in short-term borrowings
|
(84.3
|
)
|
(246.0
|
)
|
68.8
|
|||||||
Proceeds
from issuance of long-term debt
(net
of debt issue costs of $2.7 for 2009 and $.3 for 2008)
|
343.1
|
224.7
|
—
|
|||||||||
Payments
on long-term debt
|
(50.1
|
)
|
(.2
|
)
|
(150.3
|
)
|
||||||
Purchase
of common stock
|
(13.4
|
)
|
(202.3
|
)
|
(461.4
|
)
|
||||||
Issuance
of common stock
|
62.6
|
8.6
|
83.3
|
|||||||||
Cash
dividends
|
(47.3
|
)
|
(101.8
|
)
|
(108.6
|
)
|
||||||
CASH
FLOW FROM FINANCING ACTIVITIES
|
210.6
|
(317.0
|
)
|
(568.2
|
)
|
|||||||
Effect
of exchange rate changes on cash
|
12.7
|
(23.9
|
)
|
13.5
|
||||||||
INCREASE IN
CASH AND CASH EQUIVALENTS
|
805.4
|
23.1
|
21.4
|
|||||||||
Cash
and cash equivalents at beginning of year
|
277.8
|
254.7
|
233.3
|
|||||||||
CASH
AND CASH EQUIVALENTS AT END OF YEAR
|
$
|
1,083.2
|
$
|
277.8
|
$
|
254.7
|
AS
OF DECEMBER 31, 2009
|
BUY
|
SELL
|
||||||
United
States dollar
|
$
|
243.9
|
$
|
(6.9
|
)
|
|||
Pound
sterling
|
—
|
(35.1
|
)
|
|||||
Euro
|
60.6
|
(163.5
|
)
|
|||||
Canadian
dollar
|
—
|
(77.3
|
)
|
|||||
Australian
dollar
|
—
|
(13.3
|
)
|
|||||
Czech
koruna
|
14.9
|
—
|
||||||
Swedish
krona
|
—
|
(13.2
|
)
|
|||||
Norwegian
krone
|
—
|
(8.1
|
)
|
|||||
Other
|
7.4
|
(12.7
|
)
|
|||||
Total
|
$
|
326.8
|
$
|
(330.1
|
)
|
|||
AS
OF DECEMBER 31, 2008
|
||||||||
Total
|
$
|
583.2
|
$
|
(518.3
|
)
|
AS
OF DECEMBER 31, 2009
|
BUY
|
SELL
|
||||||
United
States dollar
|
$
|
1,425.1
|
$
|
(2,863.8
|
)
|
|||
Pound
sterling
|
1,838.4
|
(537.7
|
)
|
|||||
Euro
|
1,009.9
|
(750.2
|
)
|
|||||
Canadian
dollar
|
22.9
|
(64.5
|
)
|
|||||
Czech
koruna
|
—
|
(5.1
|
)
|
|||||
Japanese
yen
|
—
|
(31.4
|
)
|
|||||
Swedish
krona
|
95.0
|
(73.7
|
)
|
|||||
New
Zealand dollar
|
22.5
|
(11.2
|
)
|
|||||
Swiss
franc
|
1.2
|
(16.9
|
)
|
|||||
Norwegian
krone
|
—
|
(4.4
|
)
|
|||||
Danish
krone
|
.8
|
(34.3
|
)
|
|||||
Other
|
5.6
|
(25.1
|
)
|
|||||
Total
|
$
|
4,421.4
|
$
|
(4,418.3
|
)
|
|||
AS
OF DECEMBER 31, 2008
|
||||||||
Total
|
$
|
2,261.4
|
$
|
(2,434.2
|
)
|
AS
OF DECEMBER 31,
|
2009
|
2008
|
||||||
Zinc
|
7.3
|
13.7
|
||||||
Copper
|
1.6
|
3.3
|
i. | Under the terms of two restricted stock plans, all restrictions lapsed on outstanding, but non-vested, restricted stock and restricted stock units, except for those held by the Corporation’s Chairman, President, and Chief Executive Officer. As a result of that lapse, the Corporation recognized previously unrecognized compensation expense in the amount of approximately $33.0 million, restrictions lapsed on 479,034 restricted shares, and the Corporation issued 311,963 shares in satisfaction of the restricted units (those 311,963 shares were net of 166,037 shares withheld to satisfy employee tax withholding requirements). In addition, the Corporation repurchased 186,326 shares, representing shares with a fair value equal to amounts necessary to satisfy employee tax withholding requirements on the 479,034 restricted shares on which restrictions lapsed. |
ii.
|
Under
the terms of severance agreements with 19 of its key employees, all
unvested stock options held by those individuals, aggregating
approximately 1.1 million options, immediately vested. As a result, the
Corporation recognized previously unrecognized compensation expense
associated with those options in the amount of approximately $9.3
million.
|
iii.
|
Under
the terms of The Black & Decker Supplemental Executive Retirement
Plan, which covers six key employees, the participants became fully
vested. As a result, the Corporation recognized additional pension expense
of approximately $5.3 million.
|
2009
|
2008
|
|||||||
FIFO
cost
|
||||||||
Raw
materials and work-in-process
|
$
|
195.7
|
$
|
263.9
|
||||
Finished
products
|
593.3
|
783.8
|
||||||
789.0
|
1,047.7
|
|||||||
Adjustment
to arrive at LIFO inventory value
|
(11.9
|
)
|
(23.5
|
)
|
||||
$
|
777.1
|
$
|
1,024.2
|
2009
|
2008
|
|||||||
Property,
plant, and equipment at cost:
|
||||||||
Land
and improvements
|
$
|
40.9
|
$
|
41.3
|
||||
Buildings
|
299.6
|
299.7
|
||||||
Machinery
and equipment
|
1,252.2
|
1,288.9
|
||||||
1,592.7
|
1,629.9
|
|||||||
Less
accumulated depreciation
|
1,119.3
|
1,102.0
|
||||||
$
|
473.4
|
$
|
527.9
|
POWER
TOOLS
&
ACCESSORIES
|
HARDWARE
&
HOME
IMPROVEMENT
|
FASTENING
&
ASSEMBLY
SYSTEMS
|
TOTAL
|
|||||||||||||
Balance
at January 1, 2008
|
$
|
436.4
|
$
|
464.4
|
$
|
312.1
|
$
|
1,212.9
|
||||||||
Acquisition
|
—
|
—
|
13.9
|
13.9
|
||||||||||||
Currency
translation adjustment
|
(3.5
|
)
|
(1.0
|
)
|
.9
|
(3.6
|
)
|
|||||||||
Balance
at December 31, 2008
|
432.9
|
463.4
|
326.9
|
1,223.2
|
||||||||||||
Activity
associated with prior year acquisition
|
—
|
—
|
(.3
|
)
|
(.3
|
)
|
||||||||||
Currency
translation adjustment
|
3.2
|
.7
|
3.2
|
7.1
|
||||||||||||
Balance
at December 31, 2009
|
$
|
436.1
|
$
|
464.1
|
$
|
329.8
|
$
|
1,230.0
|
2009
|
2008
|
|||||||
Customer
relationships
(net of accumulated amortization
of $21.4 in 2009 and $15.7 in 2008)
|
$
|
51.2
|
$
|
56.9
|
||||
Technology
and patents
(net of accumulated amortization
of
$11.8 in 2009 and $9.5 in 2008)
|
11.9
|
14.2
|
||||||
Trademarks
and trade names
(net of accumulated amortization
of $2.2 in 2009 and $5.6 in 2008)
|
197.9
|
206.5
|
||||||
Total
intangibles, net
|
$
|
261.0
|
$
|
277.6
|
2009
|
2008
|
|||||||
Trade
discounts and allowances
|
$
|
153.9
|
$
|
202.8
|
||||
Employee
benefits
|
117.5
|
128.8
|
||||||
Salaries
and wages
|
93.9
|
81.1
|
||||||
Advertising
and promotion
|
38.8
|
37.8
|
||||||
Warranty
|
50.7
|
55.2
|
||||||
Income
taxes, including deferred taxes
|
64.0
|
102.0
|
||||||
All
other
|
273.9
|
339.7
|
||||||
$
|
792.7
|
$
|
947.4
|
2009
|
2008
|
|||||||
Warranty
reserve at January 1
|
$
|
55.2
|
$
|
60.5
|
||||
Accruals
for warranties issued during
the period and changes in estimates
related to pre-existing warranties
|
92.1
|
123.0
|
||||||
Settlements
made
|
(98.1
|
)
|
(125.1
|
)
|
||||
Currency
translation adjustments
|
1.5
|
(3.2
|
)
|
|||||
Warranty
reserve at December 31
|
$
|
50.7
|
$
|
55.2
|
2009
|
2008
|
|||||||
7.125%
notes due 2011 (including discount
of $.4 in 2009 and $.7 in 2008)
|
$
|
399.6
|
$
|
399.3
|
||||
4.75%
notes due 2014 (including discount
of $1.1 in 2009 and $1.3 in 2008)
|
298.9
|
298.7
|
||||||
8.95%
notes due in 2014 (including discount
of $3.6 in 2009)
|
346.4
|
—
|
||||||
5.75%
notes due 2016 (including discount
of $.8 in 2009 and $1.0 in 2008)
|
299.2
|
299.0
|
||||||
7.05%
notes due 2028
|
150.0
|
150.0
|
||||||
Other
loans due through 2012
|
175.0
|
225.0
|
||||||
Fair
value hedging adjustment
|
45.9
|
72.8
|
||||||
Less current maturities of long-term debt
|
—
|
(.1
|
)
|
|||||
$
|
1,715.0
|
$
|
1,444.7
|
Derivatives
Not Designated as Hedging Instruments
|
||||||||||
Foreign exchange contracts
|
Other
current assets
|
$
|
17.9
|
Other
current liabilities
|
$
|
17.0
|
||||
Total Derivatives
|
$
|
102.8
|
$
|
82.6
|
Derivatives
in Cash Flow
Hedging
Relationships
|
AMOUNT
OF
GAIN
(LOSS)
RECOGNIZED
IN
OCI (a)
[EFFECTIVE
PORTION]
|
LOCATION
OF
GAIN
(LOSS)
RECLASSIFIED
FROM
OCI
INTO INCOME
[EFFECTIVE
PORTION]
|
AMOUNT
OF
GAIN
(LOSS)
RECLASSIFIED
FROM
OCI
INTO INCOME [INEFFECTIVE PORTION]
|
LOCATION OF
GAIN
(LOSS)
RECOGNIZED
IN
INCOME
[INEFFECTIVE
PORTION]
|
AMOUNT
OF
GAIN
(LOSS)
RECOGNIZED
IN
INCOME
[INEFFECTIVE PORTION]
|
|||||||||||
Foreign
exchange contracts
|
$
|
46.9
|
Cost
of goods sold
|
$
|
42.4
|
Cost
of goods sold
|
$
|
—
|
||||||||
Interest
expense, net
|
2.3
|
Interest
expense, net
|
—
|
|||||||||||||
Other
expense
(income)
|
78.8
|
Other
expense
(income)
|
.1
|
|||||||||||||
Commodity
contracts
|
9.6
|
Cost
of goods sold
|
(6.5
|
)
|
Cost
of goods sold
|
—
|
||||||||||
Total
|
$
|
56.5
|
$
|
117.0
|
$
|
.1
|
Derivatives
in Fair Value Hedging Relationships
|
LOCATION
OF GAIN (LOSS)
RECOGNIZED
IN INCOME
|
AMOUNT
OF GAIN (LOSS)
RECOGNIZED
IN INCOME
|
|||
Interest
rate contracts
|
Interest
expense, net
|
$
|
(8.6
|
)
|
Derivatives
in Net Investment Hedging Relationships
|
AMOUNT OF GAIN
(LOSS)
RECOGNIZED
IN OCI
[EFFECTIVE
PORTION]
|
LOCATION
OF GAIN (LOSS)
RECOGNIZED
IN INCOME
[INEFFECTIVE
PORTION]
|
AMOUNT
OF GAIN (LOSS)
RECOGNIZED
IN INCOME
[INEFFECTIVE
PORTION]
|
||||||
Foreign
exchange contracts
|
$
|
(66.1
|
)
|
Other
expense
(income)
|
$
|
—
|
Derivatives
Not Designated as Hedging Instruments
|
LOCATION
OF GAIN (LOSS)
RECOGNIZED
IN INCOME
|
AMOUNT
OF GAIN (LOSS)
RECOGNIZED
IN INCOME
|
|||
Foreign
exchange contracts
|
Cost
of goods sold
|
$
|
(.1
|
)
|
|
Other
expense (income)
|
1.6
|
||||
Total
|
$
|
1.5
|
(a)
|
OCI
is defined as Accumulated Other Comprehensive income (loss), a component
of stockholders’ equity.
|
QUOTED PRICES
IN ACTIVE
MARKETS
FOR
IDENTICAL
ASSETS
(LEVEL
1)
|
SIGNIFICANT
OTHER
OBSERVABLE
INPUTS
(LEVEL
2)
|
NETTING
|
(a)
|
DECEMBER 31,
2009
|
||||||||||||
Assets:
|
||||||||||||||||
Investments
|
$
|
34.3
|
$
|
25.2
|
$
|
—
|
$
|
59.5
|
||||||||
Derivatives
|
6.0
|
96.8
|
(65.7
|
)
|
37.1
|
|||||||||||
Liabilities:
|
||||||||||||||||
Derivatives
|
—
|
(82.6
|
)
|
65.7
|
(16.9
|
)
|
||||||||||
Debt
|
—
|
(1,786.7
|
)
|
—
|
(1,786.7
|
)
|
QUOTED PRICES
IN ACTIVE
MARKETS
FOR
IDENTICAL
ASSETS
(LEVEL
1)
|
SIGNIFICANT
OTHER
OBSERVABLE
INPUTS
(LEVEL
2)
|
NETTING
|
(a)
|
DECEMBER 31,
2008
|
||||||||||||
Assets:
|
||||||||||||||||
Investments
|
$
|
45.8
|
$
|
21.7
|
$
|
—
|
$
|
67.5
|
||||||||
Derivatives
|
—
|
402.7
|
(219.3
|
)
|
183.4
|
|||||||||||
Liabilities:
|
||||||||||||||||
Derivatives
|
(7.7
|
)
|
(261.6
|
)
|
219.3
|
(50.0
|
)
|
|||||||||
Debt
|
—
|
(1,370.8
|
)
|
—
|
(1,370.8
|
)
|
(a)
|
Accounting
principles generally accepted in the Unites States permit the netting of
derivative receivables and derivative payables when a legally enforceable
master netting arrangement exists.
|
2009
|
2008
|
2007
|
||||||||||
United
States
|
$
|
(121.2
|
)
|
$
|
.4
|
$
|
97.2
|
|||||
Other
countries
|
291.6
|
364.3
|
400.4
|
|||||||||
$
|
170.4
|
$
|
364.7
|
$
|
497.6
|
2009
|
2008
|
2007
|
||||||||||
Current:
|
||||||||||||
United
States
|
$
|
(28.7
|
)
|
$
|
(6.1
|
)
|
$
|
(65.5
|
)
|
|||
Other
countries
|
50.5
|
69.8
|
68.6
|
|||||||||
21.8
|
63.7
|
3.1
|
||||||||||
Deferred:
|
||||||||||||
United
States
|
15.5
|
3.2
|
(16.3
|
)
|
||||||||
Other
countries
|
.6
|
4.2
|
(7.3
|
)
|
||||||||
16.1
|
7.4
|
(23.6
|
)
|
|||||||||
$
|
37.9
|
$
|
71.1
|
$
|
(20.5
|
)
|
2009
|
2008
|
|||||||
Deferred
tax liabilities:
|
||||||||
Other
|
$
|
(84.1
|
)
|
$
|
(80.4
|
)
|
||
Gross
deferred tax liabilities
|
(84.1
|
)
|
(80.4
|
)
|
||||
Deferred
tax assets:
|
||||||||
Tax loss carryforwards
|
49.9
|
36.2
|
||||||
Postretirement benefits
|
244.0
|
209.1
|
||||||
Environmental remediation matters
|
34.3
|
34.7
|
||||||
Stock-based compensation
|
29.8
|
40.7
|
||||||
Other
|
161.6
|
163.9
|
||||||
Gross
deferred tax assets
|
519.6
|
484.6
|
||||||
Deferred
tax asset valuation allowance
|
(37.8
|
)
|
(27.6
|
)
|
||||
Net
deferred tax assets
|
$
|
397.7
|
$
|
376.6
|
2009
|
2008
|
2007
|
||||||||||
Income
taxes at federal
statutory rate
|
$
|
59.7
|
$
|
127.6
|
$
|
174.2
|
||||||
Settlement of tax litigation
|
—
|
—
|
(153.4
|
)
|
||||||||
Lower
effective taxes on
earnings in other countries
|
(37.9
|
)
|
(59.5
|
)
|
(53.6
|
)
|
||||||
Other –
net
|
16.1
|
3.0
|
12.3
|
|||||||||
Income
taxes (benefit)
|
$
|
37.9
|
$
|
71.1
|
$
|
(20.5
|
)
|
2009
|
2008
|
2007
|
||||||||||
Balance
at January 1
|
$
|
231.5
|
$
|
317.4
|
$
|
359.5
|
||||||
Additions
based on tax positions
related to current year
|
23.9
|
33.9
|
35.2
|
|||||||||
Additions
for tax positions
related to prior years
|
18.9
|
65.5
|
63.0
|
|||||||||
Reductions
for tax positions
related to prior years
|
(9.2
|
)
|
(40.3
|
)
|
(115.0
|
)
|
||||||
Settlements
(payments)
|
(4.8
|
)
|
(57.0
|
)
|
(26.2
|
)
|
||||||
Expiration
of the statute of limitations
|
(3.4
|
)
|
(75.1
|
)
|
(13.5
|
)
|
||||||
Foreign
currency translation adjustment
|
3.4
|
(12.9
|
)
|
14.4
|
||||||||
Balance
at December 31
|
$
|
260.3
|
$
|
231.5
|
$
|
317.4
|
DECEMBER
31, 2009
|
PENSION
BENEFITS
PLANS
IN THE
UNITED
STATES
|
PENSION
BENEFITS
PLANS OUTSIDE
OF THE
UNITED
STATES
|
OTHER
POSTRETIREMENT
BENEFITS
ALL
PLANS
|
TOTAL
|
||||||||||||
Prior
service (cost) credit
|
$
|
(5.7
|
)
|
$
|
(5.0
|
)
|
$
|
19.7
|
$
|
9.0
|
||||||
Net
loss
|
(579.9
|
)
|
(174.0
|
)
|
(23.9
|
)
|
(777.8
|
)
|
||||||||
Total
|
$
|
(585.6
|
)
|
$
|
(179.0
|
)
|
$
|
(4.2
|
)
|
$
|
(768.8
|
)
|
||||
DECEMBER
31, 2008
|
||||||||||||||||
Prior
service (cost) credit
|
$
|
(9.9
|
)
|
$
|
(5.4
|
)
|
$
|
23.1
|
$
|
7.8
|
||||||
Net
loss
|
(556.3
|
)
|
(117.8
|
)
|
(15.1
|
)
|
(689.2
|
)
|
||||||||
Total
|
$
|
(566.2
|
)
|
$
|
(123.2
|
)
|
$
|
8.0
|
$
|
(681.4
|
)
|
PENSION
BENEFITS
PLANS
IN THE
UNITED
STATES
|
PENSION
BENEFITS
PLANS OUTSIDE OF
THE
UNITED STATES
|
OTHER
POSTRETIREMENT
BENEFITS
ALL
PLANS
|
TOTAL
|
|||||||||||||
Prior
service cost (credit)
|
$
|
.8
|
$
|
1.0
|
$
|
(3.4
|
)
|
$
|
(1.6
|
)
|
||||||
Net
loss
|
38.6
|
5.9
|
1.5
|
46.0
|
||||||||||||
Total
|
$
|
39.4
|
$
|
6.9
|
$
|
(1.9
|
)
|
$
|
44.4
|
ASSET
CATEGORY
|
QUOTED
PRICES
IN
ACTIVE
MARKETS
FOR
IDENTICAL
ASSETS
(LEVEL
1)
|
SIGNIFICANT
OTHER
OBSERVABLE
INPUTS
(LEVEL
2)
|
SIGNIFICANT
UNOBSERVABLE
INPUTS
(LEVEL
3)
|
DECEMBER
31, 2009
TOTAL
|
||||||||||||
Cash
and cash equivalents
|
$
|
.3
|
$
|
4.9
|
$
|
—
|
$
|
5.2
|
||||||||
Equity
securities:
|
||||||||||||||||
U.S.
companies
|
107.0
|
—
|
—
|
107.0
|
||||||||||||
Mutual
funds
|
163.1
|
193.6
|
—
|
356.7
|
||||||||||||
Fixed
income:
|
||||||||||||||||
U.S.
treasury securities
|
—
|
43.4
|
—
|
43.4
|
||||||||||||
Corporate
bonds
|
—
|
43.2
|
—
|
43.2
|
||||||||||||
Mortgage-backed
securities
|
—
|
8.1
|
—
|
8.1
|
||||||||||||
Mutual
funds
|
—
|
93.8
|
8.0
|
101.8
|
||||||||||||
Other
fixed income
|
—
|
1.5
|
—
|
1.5
|
||||||||||||
Alternative
investments
|
—
|
—
|
23.1
|
23.1
|
||||||||||||
Other
|
(10.8
|
)
|
—
|
—
|
(10.8
|
)
|
||||||||||
Total
|
$
|
259.6
|
$
|
388.5
|
$
|
31.1
|
$
|
679.2
|
ASSET
CATEGORY
|
QUOTED
PRICES
IN
ACTIVE
MARKETS
FOR
IDENTICAL
ASSETS
(LEVEL
1)
|
SIGNIFICANT
OTHER
OBSERVABLE
INPUTS
(LEVEL
2)
|
SIGNIFICANT
UNOBSERVABLE
INPUTS
(LEVEL
3)
|
DECEMBER
31, 2009
TOTAL
|
||||||||||||
Cash
and cash equivalents
|
$
|
4.6
|
$
|
—
|
$
|
—
|
$
|
4.6
|
||||||||
Equity
securities:
|
||||||||||||||||
International companies
|
61.0
|
6.9
|
—
|
67.9
|
||||||||||||
Mutual
funds
|
218.3
|
—
|
—
|
218.3
|
||||||||||||
Fixed
income:
|
||||||||||||||||
Corporate
bonds
|
—
|
69.7
|
—
|
69.7
|
||||||||||||
Government
issues
|
—
|
50.3
|
—
|
50.3
|
||||||||||||
Other
fixed income
|
—
|
4.7
|
—
|
4.7
|
||||||||||||
Alternative
investments
|
.3
|
—
|
6.7
|
7.0
|
||||||||||||
Other
|
.2
|
—
|
—
|
.2
|
||||||||||||
Total
|
$
|
284.4
|
$
|
131.6
|
$
|
6.7
|
$
|
422.7
|
PENSION
BENEFITS
PLANS
IN THE
UNITED
STATES
|
PENSION
BENEFITS
PLANS
OUTSIDE OF THE
UNITED
STATES
|
TOTAL
|
||||||||||
Balance,
beginning of year
|
$
|
37.4
|
$
|
20.7
|
$
|
58.1
|
||||||
Sales
(net of purchases)
|
(4.7
|
)
|
(11.5
|
)
|
(16.2
|
)
|
||||||
Transfers
in (out)
|
—
|
(.2
|
)
|
(.2
|
)
|
|||||||
Net
realized and unrealized gain (loss)
|
(1.6
|
)
|
(3.9
|
)
|
(5.5
|
)
|
||||||
Foreign
exchange
|
—
|
1.6
|
1.6
|
|||||||||
Balance,
end of year
|
$
|
31.1
|
$
|
6.7
|
$
|
37.8
|
PENSION
BENEFITS
PLANS
IN THE
UNITED
STATES
|
PENSION
BENEFITS
PLANS OUTSIDE OF
THE
UNITED
STATES
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
All
defined benefit plans:
|
||||||||||||||||
Accumulated benefit obligation
|
$
|
1,079.3
|
$
|
958.4
|
$
|
632.9
|
$
|
504.4
|
||||||||
Unfunded
defined benefit plans:
|
||||||||||||||||
Projected benefit obligation
|
108.8
|
95.3
|
125.5
|
119.4
|
||||||||||||
Accumulated benefit obligation
|
97.3
|
84.5
|
116.3
|
110.5
|
||||||||||||
Defined
benefit plans with an accumulated benefit
obligation in excess of the fair value of plan assets:
|
||||||||||||||||
Projected benefit obligation
|
1,138.4
|
1,006.1
|
659.6
|
522.3
|
||||||||||||
Accumulated benefit obligation
|
1,079.3
|
952.2
|
632.9
|
496.1
|
||||||||||||
Fair value of plan assets
|
679.2
|
582.7
|
422.7
|
334.6
|
PENSION
BENEFITS
PLANS IN
THE
UNITED
STATES
|
PENSION
BENEFITS
PLANS
OUTSIDE OF THE
UNITED
STATES
|
OTHER
POST-
RETIREMENT
BENEFITS
ALL PLANS
|
||||||||||
2010
|
$
|
72.9
|
$
|
30.9
|
$
|
9.6
|
||||||
2011
|
72.9
|
32.0
|
9.2
|
|||||||||
2012
|
72.5
|
33.0
|
8.7
|
|||||||||
2013
|
94.7
|
34.3
|
8.3
|
|||||||||
2014
|
74.2
|
35.3
|
8.1
|
|||||||||
2015-2019
|
388.0
|
195.1
|
35.9
|
2009
|
2008
|
2007
|
||||||||||
Service
cost
|
$
|
.7
|
$
|
.8
|
$
|
.8
|
||||||
Interest
cost
|
4.8
|
4.9
|
5.3
|
|||||||||
Amortization
of prior service cost
|
(3.4
|
)
|
(3.6
|
)
|
(4.5
|
)
|
||||||
Amortization
of net actuarial loss
|
.8
|
.4
|
.2
|
|||||||||
Net
periodic cost
|
$
|
2.9
|
$
|
2.5
|
$
|
1.8
|
||||||
Weighted-average
discount rate
used in determining net
periodic cost for year
|
6.25
|
%
|
6.00
|
%
|
6.25
|
%
|
ONE-PERCENTAGE-POINT
|
INCREASE
|
(DECREASE)
|
||||
Effect
on total of service and
interest cost components
|
$
|
.2
|
$
|
(.2
|
)
|
|
Effect
on postretirement benefit obligation
|
3.9
|
(3.6
|
)
|
2009
|
2008
|
|||||||
Foreign
currency translation adjustment
|
$
|
32.1
|
$
|
(65.4
|
)
|
|||
Net
gain (loss) on derivative instruments,
net of tax
|
2.6
|
55.9
|
||||||
Minimum
pension liability adjustment,
net of tax
|
(507.5
|
)
|
(446.8
|
)
|
||||
$
|
(472.8
|
)
|
$
|
(456.3
|
)
|
(AMOUNTS
IN MILLIONS
EXCEPT
PER SHARE DATA)
|
2009
|
2008
|
2007
|
|||||||||
Numerator:
|
||||||||||||
Net earnings
|
$
|
132.5
|
$
|
293.6
|
$
|
518.1
|
||||||
Dividends
on stock-based plans
|
(.8
|
)
|
(1.5
|
)
|
(1.3
|
)
|
||||||
Undistributed earnings allocable
to stock-based plans
|
(1.5
|
)
|
(3.0
|
)
|
(5.1
|
)
|
||||||
Numerator
for basic and
diluted earnings per share –
net earnings available to
common shareholders
|
$
|
130.2
|
$
|
289.1
|
$
|
511.7
|
||||||
Denominator:
|
||||||||||||
Denominator for basic
earnings per share –
weighted-average shares
|
59.6
|
59.8
|
64.3
|
|||||||||
Employee
stock options
|
.3
|
.8
|
1.4
|
|||||||||
Denominator for diluted
earnings per share –
adjusted weighted-average
shares and assumed
conversions
|
59.9
|
60.6
|
65.7
|
|||||||||
Basic
earnings per share
|
$
|
2.18
|
$
|
4.83
|
$
|
7.96
|
||||||
Diluted
earnings per share
|
$
|
2.17
|
$
|
4.77
|
$
|
7.78
|
2009
|
2008
|
2007
|
||||||||||
Number
of options (in millions)
|
4.8
|
2.6
|
1.6
|
|||||||||
Weighted-average
exercise price
|
$
|
63.71
|
$
|
81.39
|
$
|
88.76
|
STOCK
OPTIONS
|
WEIGHTED-
AVERAGE
EXERCISE
PRICE
|
|||||||
Outstanding
at December 31, 2006
|
6,036,012
|
$
|
55.68
|
|||||
Granted
|
790,470
|
88.38
|
||||||
Exercised
|
(1,406,664
|
)
|
49.75
|
|||||
Forfeited
|
(154,788
|
)
|
80.80
|
|||||
Outstanding
at December 31, 2007
|
5,265,030
|
61.43
|
||||||
Granted
|
548,020
|
67.11
|
||||||
Exercised
|
(163,728
|
)
|
51.74
|
|||||
Forfeited
|
(149,128
|
)
|
83.80
|
|||||
Outstanding
at December 31, 2008
|
5,500,194
|
61.68
|
||||||
Granted
|
795,940
|
38.28
|
||||||
Exercised
|
(1,342,211
|
)
|
42.04
|
|||||
Forfeited
|
(255,799
|
)
|
68.13
|
|||||
Outstanding
at December 31, 2009
|
4,698,124
|
$
|
62.97
|
|||||
Options
expected to vest at
December 31, 2009
|
4,623,002
|
$
|
62.94
|
|||||
Options
exercisable at
December 31, 2009
|
3,800,872
|
$
|
63.08
|
2009
|
2008
|
2007
|
||||||||||
Expected
life in years
|
6.0
|
6.0
|
5.5
|
|||||||||
Interest
rate
|
2.23
|
%
|
3.30
|
%
|
4.56
|
%
|
||||||
Volatility
|
35.4
|
%
|
30.7
|
%
|
25.3
|
%
|
||||||
Dividend
yield
|
2.00
|
%
|
2.50
|
%
|
1.90
|
%
|
NUMBER
OF
SHARES
|
WEIGHTED-
AVERAGE
FAIR VALUE AT
GRANT
DATE
|
|||||||
Non-vested
at December 31, 2006
|
618,038
|
$
|
76.32
|
|||||
Granted
|
266,537
|
88.53
|
||||||
Forfeited
|
(46,425
|
)
|
81.04
|
|||||
Vested
|
(157,056
|
)
|
56.10
|
|||||
Non-vested
at December 31, 2007
|
681,094
|
85.43
|
||||||
Granted
|
347,175
|
66.62
|
||||||
Forfeited
|
(53,592
|
)
|
82.20
|
|||||
Vested
|
(50,263
|
)
|
56.16
|
|||||
Non-vested
at December 31, 2008
|
924,414
|
80.15
|
||||||
Granted
|
584,560
|
38.29
|
||||||
Forfeited
|
(54,005
|
)
|
74.16
|
|||||
Vested
|
(1,115,269
|
)
|
63.85
|
|||||
Non-vested
at December 31, 2009
|
339,700
|
$
|
62.57
|
Reportable
Business Segments
|
||||||||||||||||||||||||||||
Year
Ended December 31, 2009
|
Power
Tools
& Accessories
|
Hardware
&
Home Improvement
|
Fastening
&
Assembly Systems
|
Total
|
Currency
Translation Adjustments
|
Corporate,
Adjustment,
&
Eliminations
|
Consolidated
|
|||||||||||||||||||||
Sales
to unaffiliated customers
|
$ | 3,471.5 | $ | 755.4 | $ | 536.6 | $ | 4,763.5 | $ | 11.6 | $ | — | $ | 4,775.1 | ||||||||||||||
Segment
profit (loss)
(for consolidated,
operating
income before
merger-related
expenses
and restructuring
and exit costs)
|
257.3 | 76.9 | 39.5 | 373.7 | 13.5 | (67.1 | ) | 320.1 | ||||||||||||||||||||
Depreciation
and
amortization
|
85.1 | 18.8 | 22.0 | 125.9 | .6 | 1.5 | 128.0 | |||||||||||||||||||||
Income
from equity method
investees
|
21.3 | — | — | 21.3 | — | (1.9 | ) | 19.4 | ||||||||||||||||||||
Capital
expenditures
|
41.3 | 13.2 | 7.4 | 61.9 | .3 | .9 | 63.1 | |||||||||||||||||||||
Segment
assets
(for Consolidated,
total assets)
|
2,108.2 | 503.9 | 388.8 | 3,000.9 | 85.9 | 2,408.4 | 5,495.2 | |||||||||||||||||||||
Investment
in equity method
investees
|
28.1 | — | .6 | 28.7 | — | (1.7 | ) | 27.0 | ||||||||||||||||||||
Year
Ended December 31, 2008
|
||||||||||||||||||||||||||||
Sales
to unaffiliated
customers
|
$ | 4,286.6 | $ | 891.6 | $ | 703.2 | $ | 5,881.4 | $ | 204.7 | $ | — | $ | 6,086.1 | ||||||||||||||
Segment
profit (loss)
(for Consolidated,
operating
income before
restructuring
and
exit
costs)
|
317.4 | 75.8 | 106.0 | 499.2 | 29.4 | (51.8 | ) | 476.8 | ||||||||||||||||||||
Depreciation
and
amortization
|
89.9 | 20.6 | 21.6 | 132.1 | 3.4 | 1.1 | 136.6 | |||||||||||||||||||||
Income
from equity method
investees
|
12.0 | — | — | 12.0 | — | (.9 | ) | 11.1 | ||||||||||||||||||||
Capital
expenditures
|
56.6 | 16.5 | 18.6 | 91.7 | 2.3 | 4.8 | 98.8 | |||||||||||||||||||||
Segment
assets
(for Consolidated,
total
assets)
|
2,492.6 | 571.7 | 433.1 | 3,497.4 | (11.8 | ) | 1,697.7 | 5,183.3 | ||||||||||||||||||||
Investment
in equity method
investees
|
26.8 | — | .5 | 27.3 | — | (1.7 | ) | 25.6 | ||||||||||||||||||||
Reportable
Business Segments
|
||||||||||||||||||||||||||||
|
Power
Tools
& Accessories
|
Hardware
&
Home Improvement
|
Fastening
&
Assembly Systems
|
Total
|
Currency
Translation Adjustments
|
Corporate,
Adjustment,
&
Eliminations
|
Consolidated
|
Year
Ended December 31, 2007
|
||||||||||||||||||||||||||||
Sales
to unaffiliated customers
|
$ | 4,754.8 | $ | 1,001.7 | $ | 720.7 | $ | 6,477.2 | $ | 86.0 | $ | — | $ | 6,563.2 | ||||||||||||||
Segment
profit (loss)
(for Consolidated,
operating
income
before
restructuring
and
exit costs)
|
482.2 | 113.6 | 113.9 | 709.7 | (2.3 | ) | (106.2 | ) | 601.2 | |||||||||||||||||||
Depreciation
and
amortization
|
96.7 | 22.8 | 20.5 | 140.0 | .5 | 2.9 | 143.4 | |||||||||||||||||||||
Income
from equity method
investees
|
12.7 | — | — | 12.7 | — | (1.0 | ) | 11.7 | ||||||||||||||||||||
Capital
expenditures
|
65.0 | 20.8 | 22.2 | 108.0 | .5 | 7.9 | 116.4 | |||||||||||||||||||||
Segment
assets
(for Consolidated,
total assets)
|
2,654.2 | 653.7 | 406.6 | 3,714.5 | 135.5 | 1,560.9 | 5,410.9 | |||||||||||||||||||||
Investment
in equity method
investees
|
15.6 | — | .5 | 16.1 | — | (1.7 | ) | 14.4 |
2009
|
2008
|
2007
|
||||||||||
Segment
profit for total
reportable
business segments
|
$
|
373.7
|
$
|
499.2
|
$
|
709.7
|
||||||
Items
excluded from segment profit:
|
||||||||||||
Adjustment
of budgeted foreign
exchange rates to actual rates
|
13.5
|
29.4
|
(2.3
|
)
|
||||||||
Depreciation of Corporate property
|
(1.5
|
)
|
(1.1
|
)
|
(1.4
|
)
|
||||||
Adjustment to businesses’ postretirement
benefit expenses booked in consolidation
|
(12.0
|
)
|
(3.6
|
)
|
(19.9
|
)
|
||||||
Other adjustments booked in consolidation
directly related to reportable business segments
|
(.3
|
)
|
(4.9
|
)
|
8.3
|
|||||||
Amounts allocated to businesses in arriving at
segment profit in excess of (less than) Corporate
center operating expenses, eliminations, and other
amounts identified above
|
(53.3
|
)
|
(42.2
|
)
|
(93.2
|
)
|
||||||
Operating
income before merger-related expenses
and restructuring and exit costs
|
320.1
|
476.8
|
601.2
|
|||||||||
Merger-related
expenses
|
58.8
|
—
|
—
|
|||||||||
Restructuring
and exit costs
|
11.9
|
54.7
|
19.0
|
|||||||||
Operating
income
|
249.4
|
422.1
|
582.2
|
|||||||||
Interest
expense, net of interest income
|
83.8
|
62.4
|
82.3
|
|||||||||
Other
(income) expense
|
(4.8
|
)
|
(5.0
|
)
|
2.3
|
|||||||
Earnings
before income taxes
|
$
|
170.4
|
$
|
364.7
|
$
|
497.6
|
2009
|
2008
|
2007
|
||||||||||
Segment
assets for total reportable
business segments
|
$
|
3,000.9
|
$
|
3,497.4
|
$
|
3,714.5
|
||||||
Items
excluded from segment assets:
|
||||||||||||
Adjustment of budgeted foreign
exchange rates to actual rates
|
85.9
|
(11.8
|
)
|
135.5
|
||||||||
Goodwill
|
636.6
|
633.8
|
640.5
|
|||||||||
Pension assets
|
—
|
17.5
|
76.6
|
|||||||||
Other
Corporate assets
|
1,771.8
|
1,046.4
|
843.8
|
|||||||||
$
|
5,495.2
|
$
|
5,183.3
|
$
|
5,410.9
|
2009
|
2008
|
2007
|
||||||||||
Consumer
and industrial power
tools and product service
|
$
|
2,449.2
|
$
|
3,236.1
|
$
|
3,537.3
|
||||||
Lawn
and garden products
|
312.1
|
377.9
|
430.6
|
|||||||||
Consumer
and industrial accessories
|
392.6
|
452.0
|
479.2
|
|||||||||
Cleaning,
automotive, lighting, and
household products
|
266.7
|
321.0
|
345.3
|
|||||||||
Security
hardware
|
552.5
|
649.9
|
730.9
|
|||||||||
Plumbing
products
|
248.0
|
309.2
|
323.3
|
|||||||||
Fastening
and assembly systems
|
554.0
|
740.0
|
716.6
|
|||||||||
$
|
4,775.1
|
$
|
6,086.1
|
$
|
6,563.2
|
2009
|
2008
|
2007
|
||||||||||
United
States
|
$
|
2,705.5
|
$
|
3,358.6
|
$
|
3,930.2
|
||||||
Canada
|
275.7
|
382.3
|
361.8
|
|||||||||
North
America
|
2,981.2
|
3,740.9
|
4,292.0
|
|||||||||
Europe
|
1,076.7
|
1,516.0
|
1,568.0
|
|||||||||
Other
|
717.2
|
829.2
|
703.2
|
|||||||||
$
|
4,775.1
|
$
|
6,086.1
|
$
|
6,563.2
|
2009
|
2008
|
2007
|
||||||||||
United
States
|
$
|
195.4
|
$
|
217.7
|
$
|
259.6
|
||||||
Mexico
|
71.5
|
98.3
|
106.8
|
|||||||||
Other
countries
|
206.5
|
211.9
|
229.8
|
|||||||||
$
|
473.4
|
$
|
527.9
|
$
|
596.2
|
2010
|
$
|
65.6
|
||
2011
|
47.6
|
|||
2012
|
36.0
|
|||
2013
|
20.4
|
|||
2014
|
14.2
|
|||
Thereafter
|
12.1
|
|||
$
|
195.9
|
SEVERANCE
BENEFITS
|
WRITE-DOWN
TO FAIR VALUE
LESS COSTS
TO SELL
OF CERTAIN
LONG-LIVED
ASSETS
|
OTHER
CHARGES
|
TOTAL
|
|||||||||||||
Restructuring
reserve at December 31, 2006
|
$
|
2.8
|
$
|
—
|
$
|
.4
|
$
|
3.2
|
||||||||
Reserves
established in 2007
|
14.8
|
4.0
|
.2
|
19.0
|
||||||||||||
Utilization
of reserves:
|
||||||||||||||||
Cash
|
(1.0
|
)
|
—
|
—
|
(1.0
|
)
|
||||||||||
Non-cash
|
—
|
(4.0
|
)
|
—
|
(4.0
|
)
|
||||||||||
Foreign
currency translation
|
.1
|
—
|
—
|
.1
|
||||||||||||
Restructuring
reserve at December 31, 2007
|
16.7
|
—
|
.6
|
17.3
|
||||||||||||
Reserves
established in 2008
|
48.3
|
3.7
|
2.7
|
54.7
|
||||||||||||
Utilization
of reserves:
|
||||||||||||||||
Cash
|
(24.9
|
)
|
—
|
(.4
|
)
|
(25.3
|
)
|
|||||||||
Non-cash
|
—
|
(3.7
|
)
|
(.9
|
)
|
(4.6
|
)
|
|||||||||
Foreign
currency translation
|
(4.5
|
)
|
—
|
—
|
(4.5
|
)
|
||||||||||
Restructuring
reserve at December 31, 2008
|
35.6
|
—
|
2.0
|
37.6
|
||||||||||||
Reserves
established in 2009
|
12.6
|
.4
|
1.2
|
14.2
|
||||||||||||
Reversal
of reserves
|
(1.8
|
)
|
—
|
(.5
|
)
|
(2.3
|
)
|
|||||||||
Utilization
of reserves:
|
||||||||||||||||
Cash
|
(37.9
|
)
|
—
|
(1.9
|
)
|
(39.8
|
)
|
|||||||||
Non-cash
|
—
|
(.4
|
)
|
—
|
(.4
|
)
|
||||||||||
Foreign
currency translation
|
1.2
|
—
|
—
|
1.2
|
||||||||||||
Restructuring
reserve at December 31, 2009
|
$
|
9.7
|
$
|
—
|
$
|
.8
|
$
|
10.5
|
(DOLLARS
IN MILLIONS EXCEPT PER SHARE DATA)
YEAR
ENDED DECEMBER 31, 2009
|
FIRST
QUARTER
|
SECOND
QUARTER
|
THIRD
QUARTER
|
FOURTH
QUARTER
|
||||||||||||
Sales
|
$
|
1,073.7
|
$
|
1,191.4
|
$
|
1,208.7
|
$
|
1,301.3
|
||||||||
Gross
margin
|
340.8
|
372.2
|
400.3
|
473.2
|
||||||||||||
Net
earnings
|
4.9
|
38.3
|
55.4
|
33.9
|
||||||||||||
Net
earnings per common share–basic
|
$
|
.08
|
$
|
.63
|
$
|
.91
|
$
|
.56
|
||||||||
Net
earnings per common share–diluted
|
$
|
.08
|
$
|
.63
|
$
|
.91
|
$
|
.55
|
YEAR
ENDED DECEMBER 31, 2008
|
FIRST
QUARTER
|
SECOND
QUARTER
|
THIRD
QUARTER
|
FOURTH
QUARTER
|
||||||||||||
Sales
|
$
|
1,495.8
|
$
|
1,641.7
|
$
|
1,570.8
|
$
|
1,377.8
|
||||||||
Gross
margin
|
517.5
|
537.2
|
508.9
|
434.8
|
||||||||||||
Net
earnings
|
67.4
|
96.7
|
85.8
|
43.7
|
||||||||||||
Net
earnings per common share–basic
|
$
|
1.10
|
$
|
1.58
|
$
|
1.43
|
$
|
.72
|
||||||||
Net
earnings per common share–diluted
|
$
|
1.08
|
$
|
1.56
|
$
|
1.41
|
$
|
.72
|