SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 12, 2011
WALGREEN CO.
(Exact name of registrant as specified in its charter)
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Illinois
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1-604
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36-1924025
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(State or other
jurisdiction of
incorporation)
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(Commission File
Number)
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(IRS Employer
Identification
Number)
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200 Wilmot Road, Deerfield, Illinois
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60015
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code: (847) 914-2500
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 5.02
.
Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
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(e) On January 13, 2011, Walgreen Co. (the Company), adopted Amendment No. 1 to the
Walgreen Co. 2011 Executive Deferred Compensation Plan to permit executives who had been eligible
to participate or were participating as of September 30, 2010 in the Walgreen Co. Profit-Sharing
Restoration Plan to elect to defer up to 15% of their base salary as of January 1, 2011. The
Company also adopted Amendment No. 2 to the Profit-Sharing Restoration Plan which freezes the plan
by precluding contributions for plan years beginning on and after January 1, 2011. The foregoing
summary is not intended to be complete and is qualified in its entirety by reference to the full
text of such amendments, copies of which are filed as Exhibit 10.1 and Exhibit 10.2 hereto.
Item 5.07
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Submission of Matters to a Vote of Security Holders
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The Company held its Annual Meeting of Shareholders on January 12, 2011. At the Annual
Meeting, the shareholders voted on the following proposals:
1. The shareholders voted for election of the following directors to serve until the next
Annual Meeting of Shareholders or until their successors are elected and qualified:
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Votes For
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Votes Against
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Abstentions
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David J. Brailer
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603,922,572
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7,596,107
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2,316,077
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Steven A. Davis
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603,436,012
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8,151,474
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2,247,270
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William C. Foote
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576,021,992
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35,491,050
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2,321,714
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Mark P. Frissora
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578,848,101
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32,708,682
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2,277,973
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Ginger L. Graham
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602,094,373
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9,663,618
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2,076,765
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Alan G. McNally
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602,040,496
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9,750,660
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2,043,600
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Nancy M. Schlichting
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570,855,014
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40,784,060
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2,195,682
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David Y. Schwartz
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595,936,735
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15,701,970
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2,196,051
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Alejandro Silva
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596,897,980
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14,507,689
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2,429,087
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James A. Skinner
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567,184,541
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44,576,768
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2,073,447
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Gregory D. Wasson
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602,981,573
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8,864,619
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1,988,564
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There were 154,890,233 broker non-votes on this proposal.
2. The proposal to ratify the appointment of Deloitte & Touche LLP as the Companys
independent registered public accounting firm was approved by a vote of 747,539,442 for, 18,515,076
against and 2,670,471 abstentions.
3. The proposal to amend the Walgreen Co. articles of incorporation to revise the purpose
clause was approved by a vote of 751,446,509 for, 10,224,009 against and 7,054,471 abstentions.
4. The proposal to amend the Walgreen Co. articles of incorporation to eliminate certain
supermajority vote requirements was approved by a vote of 740,005,950 for, 21,539,468 against and
7,179,571 abstentions.
5. The proposal to amend the Walgreen Co. articles of incorporation to eliminate the fair
price charter provision applicable to certain business combinations was not approved (proposal
required the affirmative vote of 80% of the Companys outstanding shares as of the record date) by
a vote of 730,781,146 for, 28,671,657 against and 9,272,186 abstentions.
6. The shareholder proposal on a policy to change the vote required for shareholders to call
special shareholder meetings was not approved. There were 270,699,102 votes for, 337,275,835 votes
against, and 5,859,819 abstentions. There were 154,890,233 broker non-votes on this proposal.
7. The shareholder proposal on a policy that a significant portion of future stock option
grants to senior executives should be performance-based was not approved. There were 259,977,532
votes for, 350,509,436 votes against, and 3,347,788 abstentions. There were 154,890,233 broker
non-votes on this proposal.
Item 8.01
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Other Events
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Following shareholder approval at the Companys Annual Meeting of Shareholders on January 12,
2011 (as disclosed under Item 5.07 of this report) of the amendments to the Companys Articles of
Incorporation described in proposals 3 and 4 of Companys definitive proxy statement filed with the
Securities and Exchange Commission on November 22, 2010 (the Charter Amendments), the Company
filed articles of amendment to its Articles of Incorporation with the Secretary of State of
Illinois. The Charter Amendments became effective on January 18, 2011 upon filing of the articles
of amendment. The Charter Amendments amended the purpose clause to permit the Company to engage in
any or all lawful acts or activities for which corporations may be incorporated under the
Illinois Business Corporation Act of 1983, as amended, and eliminated certain super-majority vote
requirements. The foregoing description of the Charter Amendments is not intended to be complete
and is qualified in its entirety by reference to (i) the more detailed description thereof included
in the Companys definitive proxy statement filed with the Securities and Exchange Commission on
November 22, 2010 and (ii) the full text of the Amended and Restated Articles of Incorporation, a
copy of which is filed as Exhibit 3.1 hereto.
Item 9.01
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Financial Statements and Exhibits
.
(d)
Exhibits
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Exhibit
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Description
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3.1
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Amended and Restated Articles of Incorporation of Walgreen Co.
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10.1
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Amendment No. 1 to the Walgreen Co. 2011 Executive Deferred
Compensation Plan
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10.2
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Amendment No. 2 to the Walgreen Co. Profit-Sharing Restoration Plan
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SIGNATURE
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 hereunto duly authorized.
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WALGREEN CO.
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Date: January 18, 2011
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By:
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/s/ Dana I. Green
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Title:
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Executive Vice President,
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General Counsel and Corporate
Secretary
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Exhibit 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE I
1.
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The name of the corporation is: Walgreen Co.
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2.
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The corporation was incorporated February 15, 1909 under the name:
C. R. Walgreen and Co.
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3.
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Subsequent corporate names and the dates of their adoption are:
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Name
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Date Adopted
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Walgreen Co.
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April 13, 1916
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ARTICLE II
The address of its registered office in the State of Illinois on the date of this Restatement
of Articles of Incorporation is: 801 Adlai Stevenson Drive, Springfield, IL 62703, and the name of
its Registered Agent at said address is: Illinois Corporation Service Company.
ARTICLE III
The duration of the corporation is: Perpetual.
ARTICLE IV
The purpose or purposes for which the corporation is organized are:
To engage in any or all lawful acts or activities for which corporations may be incorporated
under the Illinois Business Corporation Act of 1983, as amended (the IBCA).
ARTICLE V
1. The aggregate number of shares which the Corporation is authorized to issue is
3,232,000,000 divided into two classes. The designation of each class, the number of shares of
each class and the par value of the shares of each class, are as follows:
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Class
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Series (if any)
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Number of Shares
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Par Value
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Preferred Shares
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Issuable in Series
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32,000,000
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$
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.0625
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Junior Participating
Preferred, Series A
Preferred
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9,845,642
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$
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.0625
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Common Shares
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None
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3,200,000,000
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$
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.078125
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2. The preferences, qualifications, limitations, restrictions and the special or relative
rights in respect of the shares of each class are:
1
SECTION A
The Preferred Shares
1. The Preferred Shares may be issued in one or more series and with such designation for each
such series sufficient to distinguish the shares thereof from the shares of all other series and
classes, as shall be stated and expressed in the resolution or resolutions providing for the issue
of each such series adopted by the Board of Directors. The Board of Directors in any such
resolution or resolutions is hereby expressly authorized to divide the Preferred Shares into series
and to fix and determine the relative rights and preferences of the shares of any series so
established as to:
(i) The rate per annum at which the holders of shares shall be entitled to receive dividends.
(ii) The price at and the terms and conditions on which shares may be redeemed.
(iii) The amount payable upon shares in event of involuntary liquidation.
(iv) The amount payable upon shares in event of voluntary liquidation.
(v) The sinking fund provisions, if any, for the redemption or purchase of shares.
(vi) The terms and conditions on which shares may be converted, if the shares are issued with
the privilege of conversion.
The Board of Directors may increase the number of shares designated for any existing series by
a resolution adding to such series authorized and unissued Preferred Shares not designated for any
other series.
2. All Preferred Shares of any one series shall be identical with each other in all respects,
except that shares of any one series issued at different times as provided in paragraph 3 of this
Section A, may differ as to the dates from which dividends thereon shall be cumulative.
3. Before any dividends on the Common Shares or on any other class or classes of stock of the
Corporation, ranking junior to the Preferred Shares with respect to payment of dividends, shall be
paid or declared or set apart for payment, the holders of Preferred Shares shall be entitled to
receive when and as declared by the Board of Directors, cumulative cash dividends, out of any funds
legally available for the declaration of dividends and in the case of each series at the rate per
annum, and no more, for the particular series fixed in the resolution or resolutions providing for
the issue of such series of Preferred Shares, adopted by the Board of Directors, payable quarterly
on such dates, in each year, as may be fixed in such resolution or resolutions. With respect to
each series of the Preferred Shares, such dividends shall be cumulative from the respective dates
of issue thereof. No dividends shall be paid on any series of the Preferred Shares in respect of
any dividend period unless all cumulative dividends accrued
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prior to said dividend period with respect to all Preferred Shares of each other series shall have
been paid or declared and set aside for payment.
4. The holders of Preferred Shares shall be entitled to vote as a class and otherwise as
provided by law.
5. Preferred Shares which have been redeemed or shall have been purchased, converted or
otherwise acquired by the Corporation may thereafter be reissued under such terms and conditions,
not inconsistent with the provisions of this Section A, as the Board of Directors may thereafter
determine.
6. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and before any distribution of the assets of the Corporation shall be made to or set
apart for the holders of the Common Shares or of any other class of shares of the Corporation
ranking junior to the Preferred Shares with respect to payment of dividends or upon dissolution,
liquidation or winding up of the Corporation, the holders of the shares of each series of the
Preferred Shares then outstanding shall be entitled to receive payment of such amount, as shall be
stated and expressed in the resolution or resolutions adopted by the Board of Directors providing
for the issue of such series; but such holders upon receipt of such payment shall be entitled to no
further payment.
7. In case of any liquidation, dissolution or winding up of the Corporation, if the amounts
payable with respect to all series of Preferred Shares then outstanding are not paid in full, the
shares of all series of the Preferred Shares shall share proportionately in accordance with the
respective amounts which would be payable on said shares if all amounts payable were paid in full.
8. A consolidation or merger of the Corporation with or into one or more corporations shall
not be deemed to be a liquidation, dissolution or winding up within the meaning of this Section A.
SECTION B
The Common Shares
1. Subject to the limitations set forth in Section A of this Article V, the holders of Common
Shares shall be entitled to dividends if, when and as the same shall be declared by the Board of
Directors out of funds of the Corporation legally available therefor.
2. The holders of Common Shares shall be entitled to vote as provided by law.
SECTION C
The Preferred and Common Shares
No holder of any shares shall have any preemptive right to subscribe for or to acquire any
additional shares of the corporation of the same or of any other class, whether now or hereafter
authorized (including any shares held by the corporation in its treasury) or any options or
warrants giving the right to purchase any such shares, or any bonds, notes, debentures or other
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obligations convertible into any such shares, excepting only such right, if any, as the Board of
Directors, in its discretion from time to time shall determine and provide.
SECTION D
Upon the effective date of this amendment and restatement, each presently issued and
outstanding share of the Common Stock of this Corporation has a par value of $.078125 per share of
Common Stock.
3. PROVISIONS APPLICABLE TO CERTAIN BUSINESS COMBINATIONS
3.01 The affirmative vote of the holders of not less than 80 percent of the outstanding
shares of Common Stock of the Corporation shall be required for the approval or authorization of
any Business Combination (as hereinafter defined) of the Corporation with any Substantial
Shareholder (as hereinafter defined); provided, however, that such 80 percent voting requirement
shall not be applicable if:
(i) Such Business Combination was approved by at least two-thirds of the Continuing
Directors (as hereinafter defined) of the Board of Directors of the Corporation; or
(ii) The Cash or fair market value (as determined by at least two-thirds of the
Continuing Directors) of the property, securities or other consideration to be received per
share by holders of the Common Stock of the Corporation in such Business Combination is not
less than the Highest Per Share Price (as hereinafter defined) paid by the Substantial
Shareholder in acquiring any of its holdings of the Corporations Common Stock.
3.02 For purposes of this paragraph 3 of Article V:
(i) The term Business Combination shall include, without limitation, (a) any merger
or consolidation of the Corporation, or any entity controlled by or under common control
with the Corporation, with or into any Substantial Shareholder, or any entity controlled by
or under common control with the Substantial Shareholder, (b) any merger or consolidation of
a Substantial Shareholder, or any entity controlled by or under common control with the
Substantial Shareholder, with or into the Corporation or any entity controlled by or under
common control with the Corporation, (c) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition, (in one transaction or a series of transactions) of all or
substantially all of the property and assets of the Corporation, or any entity controlled by
or under common control with the Corporation, to a Substantial Shareholder, or any entity
controlled by or under common control with the Substantial Shareholder, (d) any purchase,
lease, exchange, mortgage, pledge, transfer or other acquisition (in one transaction or a
series of transactions) of all or substantially all of the property and assets of a
Substantial Shareholder or any entity controlled by or under common control with the
Substantial Shareholder, by the Corporation, or any entity controlled by or under common
control with the Corporation, (e) any recapitalization of the Corporation that would have
the effect of increasing the proportionate voting power of a Substantial Shareholder, and
(f) any agreement, contract or other arrangement
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providing for any of the transactions described in this definition of Business
Combination.
(ii) The Term Substantial Shareholder shall mean and include any individual,
corporation, partnership or other person or entity which, together with its Affiliates and
Associates (as defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as in effect at the date of the adoption of this Article by
the shareholders of the Corporation (collectively, and as so in effect, the Exchange
Act)), Beneficially Owns (as defined in Rule 13d-3 of the Exchange Act) in the aggregate
10 percent or more of the outstanding Common Stock of the Corporation, and any Affiliate or
Associate of any such individual, corporation, partnership or other person or entity.
(iii) Without limitation, any share of Common Stock of the Corporation that any
Substantial Shareholder has the right to acquire at any time (notwithstanding that Rule
13d-3 deems such shares to be beneficially owned only if such right may be exercised within
60 days) pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed to be Beneficially Owned by the Substantial
Shareholder and to be outstanding for purposes of clause (ii) above.
(iv) For the purposes of subparagraph 3.01 (ii) of this paragraph 3 of Article V, the
term other consideration to be received shall include, without limitation, Common Stock or
other capital stock of the Corporation retained by its existing stockholders other than
Substantial Shareholders or other parties to such Business Combination in the event of a
Business Combination in which the Corporation is the surviving corporation.
(v) The term Continuing Director shall mean a Director who was a member of the Board
of Directors of the Corporation immediately prior to the time that the Substantial
Shareholder involved in a Business Combination became a Substantial Shareholder.
(vi) A Substantial Shareholder shall be deemed to have acquired a share of the Common
Stock of the Corporation at the time when such Substantial Shareholder became the Beneficial
Owner thereof. With respect to the shares owned by Affiliates, Associates or other persons
whose ownership is attributed to a Substantial Shareholder under the foregoing definition of
Substantial Shareholder, if the price paid by such Substantial Shareholder for such shares
is not determinable by a majority of the Continuing Directors, the price so paid shall be
deemed to be the higher of (a) the price paid upon the acquisition thereof by the Affiliate,
Associate or other person or (b) the closing market price per share on the New York Stock
Exchange on the date when the Substantial Shareholder became the Beneficial Owner thereof.
(vii) The term Highest Per Share Price as used in this paragraph 3 shall mean the
highest price that can be determined to have been paid at any time by the Substantial
Shareholder for any share or shares of Common Stock. In determining the Highest Per Share
Price all purchases by the Substantial Shareholder shall be taken into account regardless of
whether the shares were purchased before or after the Substantial Shareholder became a
Substantial Shareholder. The Highest Per Share Price shall include any brokerage
commissions, transfer taxes and soliciting dealers fees paid by the
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Substantial Shareholder with respect to the shares of common stock of the Corporation
acquired by the Substantial Shareholder. In the case of any Business Combination with a
Substantial Shareholder, the Continuing Directors shall determine the Highest Per Share
Price.
3.03 The provisions set forth in this paragraph 3 may not be amended, altered, changed or
repealed in any respect unless such action is approved by the affirmative vote of the holders of
not less than 80 percent of the outstanding shares of common stock of the Corporation at a meeting
of the shareholders duly called for the consideration of such amendment, alteration, change or
repeal.
ARTICLE VI
The class and number of shares issued on the date of adoption of this Amendment and
Restatement of the Articles of Incorporation and the paid-in capital as of such date were:
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Paid-in
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Capital with
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Class
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Series (if any)
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Number of Shares
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Par Value
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respect thereto
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Preferred Shares
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Issuable in Series
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0
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$
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.0625
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$
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0
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Common Shares
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None
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1,025,400,000
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$
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.078125
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$
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840,522,073.00
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Paid-in Capital:
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$
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840,522,073.00
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ARTICLE VII
The foregoing Amended and Restated Articles I to VI and Articles VIII to IX, and the Amended
and Restated Statement of Resolutions Establishing Series described below, are an amendment to and
restatement of the Articles of Incorporation of Walgreen Co., effective as of the date of filing of
the Articles of Amendment of Articles of Incorporation with the Secretary of State, and shall from
that time supersede and stand in lieu of the corporations Articles of Incorporation. This
Amendment and Restatement is being effected to: (i) amend the following provisions: Article IV (to
expand the stated purpose of the corporation) and the Amended and Restated Statement of Resolutions
Establishing Series (to lower the voting requirement in Section 10 thereof); and (ii) add Article
IX.
ARTICLE VIII
The Directors of the Corporation shall not be liable to the Corporation or to the shareholders
of the Corporation for monetary damages for breach of fiduciary duties as a Director, provided that
this provision shall not eliminate or limit the liability of the Director (i) for any breach of the
Directors duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of the law, (iii) under
Section 8.65 of the IBCA or (iv) for any transaction from which the Director derived an improper
personal benefit.
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ARTICLE IX
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1.
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Notwithstanding any higher shareholder vote requirement set forth in the IBCA
sections referenced in this Article (each of which is hereby superseded and replaced):
(a) the affirmative vote of at least a majority of the votes of the shares entitled to
vote on such matter (unless any class or series of shares is entitled to vote as a
class in respect thereof, in which event such authorization shall require the
affirmative vote of the holders of at least a majority of the outstanding shares of
each class or series of shares entitled to vote as a class on such matter, and of the
total outstanding shares entitled to vote on such matter) shall be required for the
shareholders of the Corporation to approve: (i) any amendment of these Articles of
Incorporation subject to a shareholder vote pursuant to Section 10.20 of the IBCA (or
any successor thereto), (ii) a proposed merger, consolidation or exchange subject to a
shareholder vote pursuant to Section 11.20(a) of the IBCA (or any successor thereto),
(iii) a sale, lease, exchange or other disposition of assets subject to a shareholder
vote pursuant to Section 11.60 of the IBCA (or any successor thereto), and (iv) a
voluntary dissolution of this Corporation subject to a shareholder vote pursuant to
Section 12.15(c) of the IBCA (or any successor thereto); and (b) the affirmative vote
of at least a majority of the outstanding voting shares that are not owned by the
interested shareholder shall be required for the shareholders of the Corporation to
approve any proposed business combination with any interested shareholder subject to a
shareholder vote pursuant to Section 11.75(a)(3) of the IBCA (or any successor
thereto).
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2.
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The reference in Section 7.85(B)(i) of the IBCA (or any successor thereto) to
at least 80% of the combined voting power of the then outstanding shares is hereby
superseded and replaced by the phrase at least a majority of the combined voting power
of the then outstanding shares for purposes of determining whether the shareholder
vote requirement set forth in Section 7.85(B)(i) of the IBCA (or any successor thereto)
has been satisfied with respect to the Corporation. Except as expressly modified
hereby, the provisions of Section 7.85 of the IBCA (or any successor thereto) remain
applicable to the Corporation and remain in full force and effect.
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AMENDED AND RESTATED
STATEMENT OF RESOLUTIONS ESTABLISHING SERIES
Pursuant to the provisions of The Business Corporation Act of 1983, the corporation hereby
submits the following:
1. The name of the corporation is Walgreen Co. (the Corporation).
2. The Board of Directors on July 9, 1986 duly adopted a resolution establishing and designating
one or more series and fixing and determining the relative rights and preferences thereof:
Pursuant to the authority vested in the Board of Directors of this Corporation in accordance
with the provisions of its Restated Articles of Incorporation, as amended, a series of Preferred
Shares, $.0625 par value per share, of the Corporation (the Preferred Shares) was created, and
that the designation and amount thereof, and the voting powers, preferences and
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relative, participating, optional and other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof, are as follows:
Section 1.
Designation and Amount
. The shares of such series shall be designated as
Junior Participating Preferred, Series A (the Series A Preferred) and the number of shares
constituting such series shall be 9,845,642.
Section 2.
Dividends and Distributions
.
(A) Subject to the prior and superior rights of the holders of any series of Preferred Shares
ranking prior and superior to the shares of Series A Preferred with respect to dividends, the
holders of shares of Series A Preferred, in preference to the holders of Common Shares, $.078125
par value per share, of the Corporation (the Common Shares) and of any other shares ranking
junior as to dividends to the Series A Preferred, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the twelfth day of September, December, March and June 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, in an amount per share (rounded to the nearest cent) equal to the greater of
(a) $0.0625 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
Common Shares or a subdivision of the outstanding Common Shares (by reclassification or otherwise),
declared on the Common Shares 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. In the event the Corporation shall at any time declare
or pay any dividend on Common Shares payable in Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares) into a greater or lesser number of Common Shares,
then in each such case the amount to which holders of shares of Series A Preferred 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 Common Shares
outstanding immediately after such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A Preferred as
provided in paragraph (A) of this Section immediately after it declares a dividend or distribution
on the Common Shares (other than a dividend payable in Common Shares); provided that, in the event
no dividend or distribution shall have been declared on the Common Shares during the period between
any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $0.0625 per share on the Series A Preferred 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 from the Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series A Preferred, 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
and be cumulative from the date of issue of such shares, or unless the date of
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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 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 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 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 shall have the
following voting rights:
(A) Each share of Series A Preferred shall entitle the holder thereof to one vote on all
matters submitted to a vote of the shareholders of the Corporation.
(B) Except as otherwise provided herein or by law, the holders of shares of Series A Preferred
and the holders of Common Shares shall vote together as one class on all matters submitted to a
vote of shareholders of the Corporation.
(C) Except as set forth herein, holders of Series A Preferred 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 Shares 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 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 outstanding
shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, or make any other distributions on, any shares ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred;
(ii) declare or pay dividends on or make any other distributions on any shares ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred, except dividends paid ratably on the Series A Preferred 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 ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred, provided
that the Corporation may at any time redeem, purchase or otherwise acquire any such junior shares
in exchange for any shares of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred; or
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(iv) purchase or otherwise acquire for consideration any shares of Series A Preferred, or any
shares ranking on a parity with the Series A Preferred, 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 to 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 the Corporation unless the Corporation could,
under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and
in such manner.
Section 5.
Reacquired Shares
. Any shares of Series A Preferred purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued Preferred Shares and may be reissued as part of a new series of Preferred
Shares to be created by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6.
Liquidation, Dissolution or Winding Up
. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (1) to the holders of shares
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred unless, prior thereto, the holders of shares of Series A Preferred 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 shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of Common Shares, or (2) to the holders of shares ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred, except distributions made ratably on the Series A Preferred and all other such parity
stock in proportion to the total amounts to which the holders of all such shares are entitled upon
such liquidation, dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on Common Shares payable in Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares) into a greater or lesser number of Common Shares,
then in each such case the aggregate amount to which holders of shares of Series A Preferred were
entitled immediately prior to such event under the proviso in clause (1) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of
Common Shares outstanding immediately after such event and the denominator of which is the number
of Common Shares that were outstanding immediately prior to such event.
Section 7.
Consolidation, Merger, etc
. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the Common Shares are exchanged
for or changed into other shares or securities, cash and/or any other property, then in any such
case the shares of Series A Preferred then outstanding shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for adjustment
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hereinafter set forth) equal to 100 times the aggregate amount of shares, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for which each Common Share
is changed or exchanged. In the event the Corporation shall at any time declare or pay any
dividend on Common Shares payable in Common Shares, or effect a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise) into a greater or
lesser number of Common Shares, 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 shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event.
Section 8.
No Redemption
. The shares of Series A Preferred shall not be redeemable.
Section 9.
Rank
. The Series A Preferred shall rank junior to all other series of the
Preferred Shares, as to the payment of dividends and the distribution of assets, unless the terms
of such other series specifies to the contrary.
Section 10.
Amendment
. The Amended and Restated Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred so as to affect them adversely without the
affirmative vote of the holders of a majority of the outstanding shares of Series A Preferred,
voting together as a single class.
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