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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED AUGUST 3, 1996
COMMISSION FILE NUMBER 0-17586
STAPLES, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2896127
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ONE RESEARCH DRIVE, WESTBOROUGH, MA 01581
(Address of principal executive offices, including zip code)
(508) 370-8500
(Registrant's telephone number, including area code)
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING
THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS
REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS.
YES X NO
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THE REGISTRANT HAD 160,772,891 SHARES OF COMMON STOCK PAR VALUE $.0006,
OUTSTANDING AS OF AUGUST 31, 1996.
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STAPLES, INC.
FORM 10-Q/A REPORT
FOR THE QUARTERLY PERIOD ENDED AUGUST 3, 1996
TABLE OF CONTENTS
-----------------
PAGE
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PART II - OTHER INFORMATION
SIGNATURES 4
EXHIBIT INDEX 5
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STAPLES, INC.
PART II - OTHER INFORMATION
---------------------------
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits
The exhibits listed in the Exhibit Index as part of or included
in this report.
(b) Reports on Form 8-K
None
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
STAPLES, INC.
(Registrant)
Date: September 23, 1996 By: /s/ John J. Mahoney
-------------------------- --------------------------
John J. Mahoney
Executive Vice President and
Chief Financial Officer
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STAPLES, INC.
FORM 10-Q/A REPORT
FOR THE QUARTERLY PERIOD ENDED AUGUST 3, 1996
INDEX TO EXHIBITS
-----------------
EXHIBIT NO. DESCRIPTION PAGE
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3.1 Registrant's Restated Certificate of
Incorporation
10.1* Staples, Inc. Second Amended and
Restated Revolving Credit
Agreement dated as of May 25, 1994
and amended and restated as of
July 10, 1996.
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*Filed as Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended August 3, 1996 and incorporated herein by reference.
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EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
STAPLES, INC.
PURSUANT TO SECTION 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
----------------------------------------
Staples, Inc. (hereinafter called the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify that at a meeting of the Board of
Directors of the Corporation in accordance with the General Corporation Law of
the State of Delaware, the Board of Directors adopted a resolution pursuant to
Section 245 of the General Corporation Law of State of Delaware proposing a
restatement of the Restated Certificate of Incorporation, as amended, of the
Corporation. The Corporation's Certificate of Incorporation was initially filed
in the Office of the Secretary of State of the State of Delaware on January 23,
1986.
The Restated Certificate of Incorporation of the Corporation, as previously
amended, only restates and integrates and does not further amend the provisions
of the Corporation's Certificate of Incorporation as theretofore amended or
supplemented, and there is no discrepancy between those provisions and the
provisions of the Restated Certificate of Incorporation which reads in its
entirety as follows:
ARTICLE I
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NAME
----
The name of the corporation is: Staples, Inc.
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ARTICLE II
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PURPOSES
--------
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
Delaware other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the General Corporation
Code.
ARTICLE III
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AGENT FOR SERVICE
-----------------
The name and address in the State of Delaware of this Corporation's
registered agent for service of process is:
The Corporation Trust Company
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
ARTICLE IV
----------
CAPITAL STOCK
-------------
The total number of shares of all classes of stock which the Corporation
has authority to issue is five hundred and five million (505,000,000) shares,
consisting of five hundred million (500,000,000) shares of Common Stock with a
par value of $.0006 per share ("Common Stock") and five million (5,000,000)
shares of Preferred Stock with a par value of $.01 per share ("Preferred
Stock").
(a) COMMON STOCK
SECTION 1. VOTING RIGHTS. The holders of shares of Common Stock shall be
entitled to one vote for each share so held with respect to all matters voted on
by the stockholders of the Corporation.
SECTION 2. LIQUIDATION RIGHTS. Upon the dissolution, liquidation or winding
up of the Corporation, after any preferential amounts to be distributed to the
holders of any series of Preferred Stock then outstanding have been paid or
declared and set apart for payment, and subject to the rights, if any, of the
holders of any series of Preferred Stock then outstanding to share in any
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remaining assets of the Corporation, the holders of the Common Stock will be
entitled to receive all the remaining assets of the Corporation available for
distribution to its stockholders ratably in proportion to the number of shares
held by them, respectively.
SECTION 3. DIVIDENDS. To the extent permitted under the General Corporation
Law of Delaware and subject to the rights, if any, of the Preferred Stock,
dividends may be paid on the Common Stock as and when declared by the Board of
Directors.
(b) PREFERRED STOCK
SECTION 1. DESIGNATION. The Preferred Stock shall be designated and known
as "Preferred Stock." The number of shares constituting such Preferred Stock
shall be 5,000,000.
Section 2. Rights and Preferences.
--------- ----------------------
The Board of Directors is authorized, subject to limitations prescribed by
law and this Amended and Restated Certificate of Incorporation, to divide the
Preferred Stock into series and to establish and designate each series and fix
and determine the variations in the relative rights and preferences as between
the different series, provided that all shares of the Preferred Stock shall be
identical except that the Board of Directors shall be authorized to fix and
determine:
(a) the number of shares in and the distinctive designation of each
series;
(b) whether or not the shares of any series shall be redeemable and,
if so, the price (which may vary under different conditions and at different
redemption dates), terms and manner of redemption, including the date or dates
on or after which they shall be redeemable;
(c) special and relative rights as to dividends with respect to each
series, including without limitation the dividend rate, conditions under which
dividends may be payable, dividend preferences, if any, and whether and from
which date or dates dividends may be cumulative;
(d) special and relative rights with respect to each series on
liquidation, voluntary or involuntary, including dissolution or winding up of
the Corporation;
(e) any sinking fund or purchase fund provisions applicable to any
series, including without limitation the annual amount thereof and the terms
relating thereto;
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(f) conversion rights, if any, of each series including the terms and
conditions of conversion, which may contain provisions for adjustment of the
conversion rate in such events as the Board of Directors shall determine; and
(g) conditions under which the separate series shall have voting
rights or no voting rights, in addition to the voting rights provided by law.
Prior to the issue of any shares of a series established by the Directors,
there shall be filed with the Secretary of State of the State of Delaware a
certificate required by law setting forth the designation of the series, its
relative rights and preferences and any other information required by law.
(c) SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
---------------------------------------------
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of this Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of the Certificate of
Incorporation (as amended to date, the "Certificate of Incorporation"), the
Board of Directors hereby creates a series of Preferred Stock, $.01 par value
per share (the "Preferred Stock"), of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights, preferences and
limitations thereof as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 1,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; PROVIDED, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, par value $.0006 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be
entitled to receive, when,
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as and if declared by the Board of Directors out of funds of the
Corporation legally available for the payment of dividends, quarterly
dividends payable in cash on March 31, June 30, September 30 and
December 31 in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b)
subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision, combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock) and the Corporation shall pay such dividend or distribution on
the Series A Preferred Stock before the dividend or distribution
declared on the Common Stock is paid or set apart; provided that, in
the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly
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Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends
on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares
of Series A Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series
A Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such
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event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, by law, or in any other
Certificate of Designations creating a series of Preferred Stock or
any similar stock, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock and any other capital stock
of the Corporation having general voting rights shall vote together as
one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If any time dividends on any Series A Preferred Stock
shall be in arrears in an amount equal to six quarterly dividends
thereon, the holders of the Series A Preferred Stock, voting as a
separate series from all other series of Preferred Stock and classes
of capital stock, shall be entitled to elect two members of the Board
of Directors in addition to any Directors elected by any other series,
class or classes of securities and the authorized number of Directors
will automatically be increased by two. Promptly thereafter, the Board
of Directors of this Corporation shall, as soon as may be practicable,
call a special meeting of holders of Series A Preferred Stock for the
purpose of electing such members of the Board of Directors. Said
special meeting shall in any event be held within 45 days of the
occurrence of such arrearage.
(ii) During any period when the holders of Series A
Preferred Stock, voting as a separate series, shall be entitled and
shall have exercised their right to elect two Directors, then and
during such time as such right continues (a) the then authorized
number of Directors shall be increased by two, and the holders of
Series A Preferred Stock, voting as a separate series, shall be
entitled to elect the additional Director so provided for, and (b)
each such additional Director shall not be a member of any existing
class of the Board of Directors, but shall serve until the next annual
meeting of stockholders for the election of Directors, or until his
successor shall be elected and shall qualify, or until his right to
hold such office terminates pursuant to the provisions of this Section
3(C).
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(iii) A Director elected pursuant to the terms hereof may be
removed with or without cause by the holders of Series A Preferred
Stock entitled to vote in an election of such Director.
(iv) If, during any interval between annual meetings of
stockholders for the election of Directors and while the holders of
Series A Preferred Stock shall be entitled to elect two Directors,
there is no such Director in office by reason of resignation, death or
removal, then, promptly thereafter, the Board of Directors shall cause
a special meeting of the holders of Series A Preferred Stock for the
purpose of filling such vacancy and such vacancy shall be filled at
such special meeting. Such special meeting shall in any event be held
within 45 days of the occurrence of such vacancy.
(v) At such time as the arrearage is fully cured, and all
dividends accumulated and unpaid on any shares of Series A Preferred
Stock outstanding are paid, and, in addition thereto, at least one
regular dividend has been paid subsequent to curing such arrearage,
the term of office of any Director elected pursuant to this Section
3(C), or his successor, shall automatically terminate, and the
authorized number of Directors shall automatically decrease by two,
the rights of the holders of the shares of the Series A Preferred
Stock to vote as provided in this Section 3(C) shall cease, subject to
renewal from time to time upon the same terms and conditions, and the
holders of shares of the Series A Preferred Stock shall have only the
limited voting rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
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(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series
A Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at any time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly
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after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Restated Certificate of
Incorporation, as amended, or in any other Certificate of Designations creating
a series of Preferred Stock or any similar stock or as otherwise required by
law.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that
the holders of shares of Series A Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of shares of Common
Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up.
(B) Neither the consolidation, merger or other business
combination of the Corporation with or into any other corporation nor
the sale, lease, exchange or conveyance of all or any part of the
property, assets or business of the Corporation shall be deemed to be
a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 6.
(C) In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock,
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then in each such case the aggregate amount to which holders of shares
of Series A Preferred Stock were entitled immediately prior to such
event under the proviso in clause (1) of paragraph (A) of this Section
6 shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. Notwithstanding anything to the
contrary contained herein, in case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series A
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. RANK. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Preferred Stock issued either before or after the
issuance of the Series A Preferred Stock, unless the terms of any such series
shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of Incorporation, as
amended, of the Corporation shall not be amended in any manner which would
materially alter or change the powers,
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preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
Section 11. FRACTIONAL SHARES. Series A Preferred Stock may be issued in
fractions of a share which are integral multiples of one-hundredth of a share
which shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and have the benefit of all other rights of holders of Series A
Preferred Stock.
ARTICLE V
---------
INDEMNIFICATION
---------------
The Corporation shall indemnify its present and former directors and
officers to the maximum extent permitted by the General Corporation Law as from
time to time amended. The indemnification provided for herein shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
ARTICLE VI
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EXISTENCE
---------
The Corporation is to have perpetual existence.
ARTICLE VII
-----------
BY-LAWS
-------
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter or repeal the
By-Laws of the Corporation.
ARTICLE VIII
------------
STOCKHOLDER MEETINGS AND BOOKS
------------------------------
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provisions contained in
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the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-Laws of the
Corporation.
ARTICLE IX
----------
AMENDMENT
---------
The Corporation reserves the right to end, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
ARTICLE X
---------
LIMITATION ON DIRECTOR LIABILITY
--------------------------------
No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation law, or (iv) for any transaction
in which the director derived an improper personal benefit.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE XI
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MEETINGS REQUIRED
-----------------
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
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ARTICLE XII
-----------
CERTAIN STOCKHOLDER ACTION
--------------------------
The following actions shall require the affirmative vote of two-thirds of
the stock of this Corporation outstanding and entitled to vote thereon: the
sale, lease or exchange of all or substantially all of this Corporation's
property and assets; the merger or consolidation of this Corporation with or
into any other corporation or entity; the dissolution of this Corporation; and
the amendment or repeal of this Article XII or the adoption of any provision
inconsistent with this Article XII.
This Amended and Restated Certificate of Incorporation supersedes and takes
the place of the heretofore existing Restated Certificate of Incorporation, as
amended, of this Corporation and all amendments, certificates and supplements
thereto, if any.
IN WITNESS WHEREOF, Staples, Inc. has caused this Amended and Restated
Certificate of Incorporation to be executed by Peter M. Schwarzenbach, its Vice
President and Secretary, this 23rd day of May, 1996.
STAPLES, INC.
By: /s/ Peter M. Schwarzenbach
----------------------------
Peter M. Schwarzenbach
Vice President and Secretary
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