UNITED STATES
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): | March 8, 2016 |
General Mills, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 001-01185 | 41-0274440 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
Number One General Mills Boulevard, Minneapolis, Minnesota | 55426-1347 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 763-764-7600 |
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:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] 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.
On March 8, 2016, Maria G. Henry was appointed to the Board of Directors of General Mills, Inc. (the "Company"). Ms. Henry's appointment is effective on June 1, 2016. Prior to her appointment, the Board made the determination that Ms. Henry qualifies as an independent director in accordance with the New York Stock Exchange Listing Standards. The Board has not yet determined Ms. Henry's committee assignments.
Ms. Henry’s compensation for Board service is consistent with the arrangements described in the Company’s definitive proxy statement filed on August 17, 2015, under "Director Compensation," including a grant to Ms. Henry of restricted stock units with a grant date fair value of approximately $180,000 at her first board meeting.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On March 8, 2016, the Board of Directors of the Company amended the Company’s By-laws (the "By-laws") to implement proxy access.
Article I, Section 9 of the By-laws permits a stockholder, or a group of up to 20 stockholders, that has continuously owned for three years at least 3% of the Company’s outstanding common stock, to nominate and include in the Company’s proxy materials up to the greater of two directors or 20% of the number of directors serving on the Company’s Board, provided that the stockholder(s) and the nominee(s) satisfy the requirements specified in the By-laws.
The By-laws also contain updates and conforming revisions to the notice of stockholder business and nominations provisions in Article I, Section 8.
This description of By-law amendments is qualified in its entirety by reference to the text of the By-laws, which are attached hereto as Exhibit 3.2 and incorporated herein by reference.
Item 8.01 Other Events.
Maria G. Henry’s biographical information is furnished in the press release attached hereto as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
3.2 Bylaws of General Mills, Inc.
99.1 Press Release of General Mills, Inc. dated March 8, 2016.
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 hereunto duly authorized.
General Mills, Inc. | ||||
March 8, 2016 | By: |
Richard C. Allendorf
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Name: Richard C. Allendorf | ||||
Title: Senior Vice President, General Counsel and Secretary |
Exhibit Index
Exhibit No.
Description
Bylaws of General Mills, Inc.
Press Release of General Mills, Inc. dated March 8, 2016.
Exhibit 3.2
BY-LAWS
of
GENERAL MILLS, INC.
as amended
through
March 8, 2016
INDEX OF BY-LAWS
BY-LAWS
ARTICLE I
STOCKHOLDERS
SECTION 1. Place of Holding Meeting:
Meetings of stockholders may be held within
or without the State of Delaware, and, as determined by the board of directors or the stockholders.
SECTION 2. Quorum:
Any number of stockholders together holding one-half (1/2) in
amount of the stock issued and outstanding entitled to vote, who shall be present in person or
represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of
business, except as may be otherwise provided by law, by the certificate of incorporation, or by
these by-laws. At any meeting of stockholders for the election of directors at which any class or
classes of stock or any one or more series of any class or classes of stock shall have a separate
vote as such class or series for the election of directors by such class or series, the absence of
a quorum of any other class of stock or of any other series of any class of stock shall not prevent
the election of the directors to be elected by such class or series. The stockholders present at a
duly called meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
SECTION 3. Adjournment of Meetings:
If less than a quorum shall be in attendance
at the time for which the meeting shall have been called, the meeting may be adjourned from time to
time by the chairman of the meeting or by a majority vote of the stockholders present or
represented, without any notice other than by announcement at the meeting, until a quorum shall
attend. Any meeting at which a quorum is present may also be adjourned, in like manner, for such
time, or upon such call, as may be determined by the chairman of the meeting or by a majority vote
of the stockholders. At any such adjourned meeting at which a quorum may be present any business
may be transacted which might have been transacted at the meeting as originally called. In the
absence of a quorum of any class or classes of stock or any one or more series of any class or
classes of stock at any meeting of stockholders at which more than one class or series of stock
shall be entitled to vote separately as a class or series for the election of directors, a majority
in interest of the stockholders present in person or by proxy of the class or classes or one or
more series of stock which lack a quorum shall also have the power to adjourn the meeting for the
election of directors which they are entitled to elect, from time to time, without notice other
than by announcement at the meeting, until a quorum of such class or classes or one or more series
of stock shall be present.
SECTION 4. Annual Election of Directors:
The annual meeting of stockholders for
the election of directors and the transaction of other business shall be held on such date and at
such time as may be fixed by resolution of the board of directors.
The directors elected annually shall hold office until the next annual election and
until their successors are respectively elected and qualified; provided, however, in the event that
the holders of any class or classes of stock or any one or more series of any class or classes of
stock have the right to elect directors separately as a class or series and such right shall have
vested, such right may be exercised as provided in the certificate of incorporation of the
corporation.
The secretary shall prepare, or cause to be prepared, at least ten (10) days before
every election, a complete list of stockholders entitled to vote, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open for such ten (10) days to the examination of any stockholder,
for any purpose germane to the meeting, and shall be produced and kept at the time and place of
election during the whole time thereof, subject to the inspection of any stockholder who may be
present.
SECTION 5. Special Meetings: How Called:
Special meetings of the stockholders for
any purpose or purposes may be called by the chairman of the board of directors or by resolution of
the board of directors. Special meetings of the holders of any class or classes of stock or any one
or more series of any class or classes of stock for the purpose of electing directors in accordance
with a special right as a class or series shall be called as provided in the certificate of
incorporation of the corporation.
SECTION 6. Voting at Stockholders Meetings:
The board of directors shall determine
the voting power of any cumulative preference stock in accordance with article IV of the
certificate of incorporation.
(a)
Election of Directors
.
Except as set forth below in this paragraph (a),
election of directors at all meetings of the stockholders at which directors are to be elected
shall be by ballot and, subject to the rights of the holders of any class or series of stock to
elect directors separately, each director shall be elected by a majority of the votes cast with
respect to the director by stockholders entitled to vote and present in person or represented by
proxy. For purposes of this by-law, a majority of the votes cast means that the number of shares
voted for a director must exceed 50% of the votes cast for and against that director,
excluding abstentions. Notwithstanding the foregoing, if as of the tenth day prior to the date
that the corporation first mails out its notice of meeting, the number of nominees standing for
election at any meeting of the stockholders exceeds the number of directors to be elected, the
directors shall be elected by a plurality of the votes cast at the meeting. If a director is not
elected, the director shall promptly tender his or her resignation to the chairman of the board
following certification of the vote. The corporate governance committee shall make a
recommendation to the board of directors on whether to accept or reject the resignation, or whether
other action should be taken. The board of directors shall act on the committees recommendation
and publicly disclose its decision and the rationale behind it within 90 days from the date of the
certification of the election results. The director who tenders his or her resignation shall not
participate in the boards decision.
(b)
Other Matters
.
At all meetings of stockholders, all other questions,
except as otherwise provided by law or the certificate of incorporation, shall be determined by a
majority of the votes cast by stockholders entitled to vote and present in person or represented by
proxy.
(c)
Vote Tabulation
.
Votes may be cast by any stockholder entitled to vote
in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or
by his attorney thereunto authorized, or by proxy sent by cable, telegram or by any means of
electronic communication permitted by law, which results in a writing from such stockholder or by
his attorney, and delivered to the secretary of the meeting. No proxy shall be voted after three
(3) years from its date, unless said proxy provides for a longer period. In determining the number
of votes cast for or against a proposal or nominee, shares abstaining from voting on a matter
(including elections) will not be treated as a vote cast. A non-vote by a broker will be counted
for purposes of determining a quorum but not for purposes of determining the number of votes cast.
SECTION 7. Notice of Stockholders Meetings:
Written notice, stating the time and
place of the meeting and, in case of a special meeting, stating also the general nature of the
business to be considered, shall be given by the secretary by mailing, or causing to be mailed,
such notice, postage prepaid, to each stockholder entitled to vote, at his post office address as
the same appears on the stock books of the corporation, or by delivering such notice to him
personally, at least ten (10) days before the meeting, or by delivering through any means of
electronic communication permitted by law.
SECTION 8. Notice of Stockholder Business and Nominations:
(a)
Annual Meetings of Stockholders
.
(1) Nominations of persons for election to the board of directors of the
corporation and the proposal of other business to be considered by the stockholders may be
made at an annual meeting of stockholders (A) pursuant to the corporations notice of
meeting, (B) by or at the direction of the board of directors, (C) by an Eligible
Stockholder (as defined below) pursuant to section 9 or (D) by any stockholder of the
corporation who (i) was a stockholder of record at the time of giving of notice provided
for in this section 8 and at the time of the annual meeting, (ii) is entitled to vote at
the meeting and (iii) complies with the notice procedures set forth in this section 8;
clauses (C) and (D) shall be the exclusive means for a stockholder to make director
nominations, and clause (D) shall be the exclusive means for a stockholder to submit other
business (other than matters properly brought under Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the Exchange Act), and included in the Corporations
notice of meeting) before an annual meeting of stockholders.
(2) For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (D) of paragraph (a)(1) of this section 8, the
stockholder must have given timely notice thereof in writing to the secretary of the
corporation and such other business must otherwise be a proper matter for stockholder
action. To be timely, a stockholders notice shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the first
anniversary of the preceding years annual meeting; provided, however, that in the event
that the date of the annual meeting is more than 30 days before or more than 60 days after
such anniversary date, notice by the stockholder to be timely must be so delivered not
earlier than the close of business on the 120th day prior to the date of such annual
meeting and not later than the close of business on the later of the 90th day prior to the
date of such annual meeting or, if the first public announcement of the date of such annual
meeting is less than 100 days prior to the date of such annual meeting, the 10th day
following the day on which public announcement of the date of such meeting is first made by
the corporation. In no event shall any adjournment of an annual meeting commence a new time
period for the giving of a stockholders notice as described above. To be proper (whether
such notice is given pursuant to this paragraph (a)(2) or pursuant to paragraph (b) of this
section 8), such stockholders notice shall set forth (A) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (i) all
information relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder (including (x) a description of all agreements, arrangements or understandings
between the stockholder, and the beneficial owner, if any, on whose behalf the nomination
is made, and each nominee for election or re-election and (y) the written consent of each
nominee to being named in the proxy statement as a nominee and to serving as a director if
elected); and (ii) a description of all direct and indirect compensation and other material
monetary agreements, arrangements and understandings during the past three years, and any
other material relationships, between or among such stockholder and the beneficial owner,
if any, on whose behalf the nomination is made, and their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each proposed
nominee, and his or her respective affiliates and associates, or others acting in concert
therewith, on the other hand, including, without limitation all information that would be
required to be disclosed pursuant to Item 404 promulgated under Regulation S-K if the
stockholder making the nomination and any beneficial owner on whose behalf the nomination
is made, if any, or any affiliate or associate thereof or person acting in concert
therewith, were the registrant for purposes of such rule and the nominee were a director
or executive officer of such registrant; (B) as to any other business (other than the
nomination of a director or directors) that the stockholder proposes to bring before the
meeting, (i) a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf the proposal
is made and (ii) a description of all agreements, arrangements and understandings between
such stockholder and beneficial owner, if any, and any other person or persons (including
their names) in connection with the proposal of such business by such stockholder; and
(C) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such stockholder, as
they appear on the corporations books, and of such beneficial owner, (ii) the class and
number of shares of the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) any option, warrant, convertible security,
stock appreciation right, or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or series of shares of the
corporation or with a value derived in whole or in part from the value of any class or
series of shares of the corporation, whether or not such instrument or right shall be
subject to settlement in the underlying class or series of capital stock of the corporation
or otherwise (a Derivative Instrument) directly or indirectly owned beneficially by such
stockholder or by such beneficial owner, and any other direct or indirect opportunity held
by such stockholder or by such beneficial owner to profit or share in any profit derived
from any increase or decrease in the value of shares of the corporation, (iv) any proxy,
contract, arrangement, understanding, or relationship pursuant to which such stockholder or
such beneficial owner has a right to vote any shares of any security of the corporation,
(v) any short interest in any security of the corporation held by such stockholder or by
such beneficial owner (for purposes of this By-law a person shall be deemed to have a short
interest in a security if such person directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has the opportunity to profit or
share in any profit derived from any decrease in the value of the subject security), (vi)
any rights to dividends on the shares of the corporation owned beneficially by such
stockholder or such beneficial owner that are separated or separable from the underlying
shares of the corporation (vii) any proportionate interest in shares of the corporation or
Derivative Instruments held, directly or indirectly, by a general or limited partnership in
which such stockholder or such beneficial owner is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, (viii) any
performance-related fees (other than an asset-based fee) that such stockholder or such
beneficial owner is entitled to based on any increase or decrease in the value of shares of
the corporation or Derivative Instruments, if any, as of the date of such notice, including
without limitation any such interests held by members of such stockholders or such
beneficial owners immediate family sharing the same household (which information shall be
supplemented by such stockholder and beneficial owner, if any, not later than 10 days after
the record date for the meeting to disclose such ownership as of the record date), and (ix)
any other information relating to such stockholder and beneficial owner, if any, that would
be required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for, as applicable, the proposal and/or for the
election of directors in a contested election pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this
section 8 to the contrary, in the event that the number of directors to be elected to the
board of directors of the corporation is increased and there is no public announcement by
the corporation naming all of the nominees for director or specifying the size of the
increased board of directors at least 100 days prior to the first anniversary of the
preceding years annual meeting, a stockholders notice required by this section 8 shall
also be considered timely, but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the secretary at the principal executive
offices of the corporation not later than the close of business on the 10th day following
the day on which such public announcement is first made by the corporation.
(b)
Special Meetings of Stockholders
.
Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the meeting pursuant to the
corporations notice of meeting. Nominations of persons for election to the board of directors may
be made at a special meeting of stockholders at which directors are to be elected pursuant to the
corporations notice of meeting (A) by or at the direction of the board of directors or (B)
provided that the board of directors has determined that directors shall be elected at such
meeting, by any stockholder of the corporation (i) who is a stockholder of record at the time of
giving of notice provided for in this section 8 and at the time of the special meeting, (ii) who is
entitled to vote at the meeting and (iii) who complies with the notice procedures set forth in this
section 8. In the event the corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the board of directors, any such stockholder may nominate a
person or persons (as the case may be), for election to such position(s) as specified in the
corporations notice of meeting, if the stockholders notice required by paragraph (a)(2) of this
section 8 shall be delivered to the secretary at the principal executive offices of the corporation
not earlier than the close of business on the 120
th
day prior to the date of such
special meeting and not later than the close of business on the later of the 90
th
day
prior to the date of such special meeting or, if the date of the first public announcement of such
special meeting is less than 100 days prior to the date of such special meeting, the
10
th
day following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the board of directors to be elected at such
meeting. In no event shall any adjournment of a special meeting commence a new time period for the
giving of a stockholders notice as described above.
(c)
General
.
(1) Only such persons who are nominated in accordance with the procedures set forth
in this section 8 or section 9 shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this section 8 and section 9.
Except as otherwise provided by law, the chairman of the meeting shall have the power and
duty to determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the procedures set
forth in this section 8 and section 9 and, if any proposed nomination or business is not in
compliance with this section 8 or section 9, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this section 8 and section 9, public announcement shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(3) Notwithstanding the foregoing provisions of this section 8, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this section 8, provided,
however, that any references in these By-Laws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit the requirements applicable to
nominations or proposals as to any other business to be considered pursuant to paragraph
(a)(1)(D) or paragraph (b) of this section 8. Nothing in this section 8 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act or any
successor rule regarding shareholder proposals or (ii) of the holders of any series of
cumulative preference stock to elect directors under specified circumstances pursuant to
the terms of such preference stock.
(4) To be eligible to be a nominee for election or reelection as a director of the
corporation pursuant to this section 8, a person must deliver (in accordance with the time
periods prescribed for delivery of notice under paragraph (a)(2) or this section 8) to the
secretary at the principal executive offices of the corporation a written questionnaire
with respect to the background and qualification of such person and the background of any
other person or entity on whose behalf the nomination is being made (which questionnaire
shall be provided by the secretary upon written request) and a written representation and
agreement (in the form provided by the secretary upon written request) that such person (A)
is not and will not become a party to (i) any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to how such
person, if elected as a director of the corporation, will act or vote on any issue or
question (a Voting Commitment) that has not been disclosed to the corporation or (ii) any
Voting Commitment that could limit or interfere with such persons ability to comply, if
elected as a director of the corporation, with such persons fiduciary duties under
applicable law, and (B) is not and will not become a party to any agreement, arrangement or
understanding with any person or entity other than the corporation with respect to any
direct or indirect compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed therein.
SECTION 9. Proxy Access for Director Nominations:
(a)
Inclusion of Nominee in Proxy Statement
.
As used in this section 9,
capitalized terms shall have the meanings indicated in section 8 or this section 9. Subject to the
terms and conditions of these by-laws, whenever the board of directors solicits proxies with
respect to the election of directors at an annual meeting of stockholders (following the 2016
annual meeting), the corporation shall include in its proxy materials for such annual meeting, in
addition to any persons nominated for election by the board of directors or a committee appointed
by the board of directors, the name, together with the Required Information (as defined below), of
any nominee for election or reelection to the board of directors delivered pursuant to this section
9 (a Stockholder Nominee) who satisfies the eligibility requirements in this section 9 (subject
to the maximum number established pursuant to section 9(l)), and who is identified in a timely and
proper notice that both complies with this section 9 (the Stockholder Notice) and is given by a
stockholder on behalf of one or more stockholders or beneficial owners that:
(1) expressly elect at the time of the delivery of the Stockholder Notice to have
such Stockholder Nominee included in the corporations proxy materials for such annual
meeting pursuant to this section 9;
(2) own and have Owned (as defined below) continuously for at least three (3) years
a number of shares that represents at least three percent (3%) of the outstanding shares of
common stock entitled to vote in the election of directors (the Required Shares) as of
(i) the date on which the Stockholder Notice is delivered to the secretary at the principal
executive offices of the corporation in accordance with this section 9, (ii) the record
date for determining stockholders entitled to vote at the annual meeting, and (iii) the
date of the annual meeting; and
(3) satisfy such additional requirements in these by-laws (an Eligible
Stockholder).
(b)
Eligible Stockholder
.
For purposes of qualifying as an Eligible
Stockholder and satisfying the Ownership requirements under section 9(a):
(1) The outstanding shares of common stock Owned by one or more stockholders and
beneficial owners that each stockholder and/or beneficial owner has Owned continuously for
at least three (3) years as of (i) the date on which the Stockholder Notice is delivered to
the secretary at the principal executive offices of the corporation in accordance with this
section 9, (ii) the record date for determining stockholders entitled to vote at the annual
meeting, and (iii) the date of the annual meeting may be aggregated, provided that the
number of stockholders and beneficial owners whose Ownership of shares is aggregated for
such purpose shall not exceed twenty (20) and that any and all requirements and obligations
for an Eligible Stockholder set forth in this section 9 are satisfied by and as to each
such stockholder and beneficial owner (except as noted with respect to aggregation or as
otherwise provided in this section 9);
(2) For this purpose, two or more funds that are (i) under common management and
investment control, (ii) under common management and funded primarily by the same employer,
or (iii) a group of investment companies, as such term is defined in Section
12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended (each, a Qualifying
Fund), shall be treated as one stockholder or beneficial owner; and
(3) No stockholder or beneficial owner, alone or together with any of its
affiliates, may be a member of more than one group constituting an Eligible Stockholder
under this section 9. If a group of stockholders aggregates Ownership of shares in order
to meet the requirements under this section 9, (i) all shares held by each stockholder
constituting their contribution to the foregoing three percent (3%) threshold must have
been held by that stockholder continuously for at least three (3) years and through the
date of the annual meeting, and evidence of such continuous Ownership shall be provided as
specified in subsection 9(g) below, (ii) each provision in this section 9 that requires the
Eligible Stockholder to provide any written statements, representations, undertakings,
agreements or other instruments or to meet any other conditions shall be deemed to require
each stockholder (including each individual fund) that is a member of such group to provide
such statements, representations, undertakings, agreements or other instruments and to meet
such other conditions (except that the members of such group may aggregate their
stockholdings in order to meet the three percent (3%) Ownership requirement of the Required
Shares definition) and (iii) a breach of any obligation, agreement or representation under
this section 9 by any member of such group shall be deemed a breach by the Eligible
Stockholder.
(c)
Ownership
.
For purposes of this section 9:
(1) A stockholder or beneficial owner shall be deemed to Own only those
outstanding shares of common stock of the corporation as to which such person possesses
both (i) the full voting and investment rights pertaining to the shares and (ii) the full
economic interest in (including the opportunity for profit and risk of loss on) such
shares; provided that the number of shares calculated in accordance with clauses (i) and
(ii) shall not include any shares (A) sold by such person or any of its affiliates in any
transaction that has not been settled or closed, including any short sale, (B) borrowed by
such person or any of its affiliates for any purposes, (C) purchased by such person or any
of its affiliates pursuant to an agreement to resell, or (D) subject to any option,
warrant, forward contract, swap, contract of sale, or other derivative or similar agreement
entered into by such person or any of its affiliates, whether any such instrument or
agreement is to be settled with shares or with cash based on the notional amount or value
of outstanding shares of common stock of the corporation, in any such case which instrument
or agreement has, or is intended to have, or if exercised would have, the purpose or effect
of (x) reducing in any manner, to any extent or at any time in the future, such persons or
its affiliates full right to vote or direct the voting of any such shares, and/or (y)
hedging, offsetting, or altering to any degree any gain or loss realized or realizable from
maintaining the full economic ownership of such shares by such person or its affiliate.
(2) A stockholder or beneficial owner shall Own shares held in the name of a
nominee or other intermediary so long as the person retains the right to instruct how the
shares are voted with respect to the election of directors and possesses the full economic
interest in the shares. A persons Ownership of shares shall be deemed to continue during
any period in which (i) the person has loaned such shares, provided that the person has the
power to recall such loaned shares on no more than three (3) business days notice, or (ii)
the person has delegated any voting power by means of a proxy, power of attorney, or other
instrument or arrangement that is revocable at any time by the person.
(3) The terms Owned, Owning and other variations of the word Own shall have
correlative meanings. Whether outstanding shares of common stock of the corporation are
Owned for purposes of this section 9 shall be determined by the board of directors or any
committee thereof, which determination shall be conclusive and binding on the corporation
and its stockholders. For purposes of this section 9, the term affiliate or affiliates
shall have the meaning ascribed thereto under the rules and regulations of the Securities
and Exchange Commission promulgated under the Exchange Act.
(d)
Required Information
.
For purposes of this section 9, the Required
Information that the corporation will include in its proxy statement is:
(1) The information concerning each Stockholder Nominee and the applicable Eligible
Stockholder that is required to be disclosed in the corporations proxy statement by the
applicable requirements of the Exchange Act and the rules and regulations thereunder; and
(2) If the Eligible Stockholder so elects, a written statement of the Eligible
Stockholder, not to exceed 500 words, in support of each Stockholder Nominee, which must be
provided at the same time as the Stockholder Notice for inclusion in the corporations
proxy statement for the annual meeting (the Statement).
Notwithstanding anything to the contrary contained in this section 9, the corporation may omit
from its proxy materials any information or Statement that it, in good faith, believes would
violate any applicable law, rule, regulation or listing standard. Nothing in this section 9 shall
limit the corporations ability to solicit against and include in its proxy materials its own
statements relating to any Eligible Stockholder or Stockholder Nominee.
(e)
Information to be Provided by Eligible Stockholder
.
The Stockholder
Notice shall set forth all information and representations required under section 8(a)(2) above
(and for such purposes, references in section 8(a)(2) to the beneficial owner on whose behalf the
nomination is made shall be deemed to refer to the Eligible Stockholder), and in addition shall
include:
(1) a copy of the Schedule 14N that has been or concurrently is filed with the SEC
under Rule 14a-18 of the Exchange Act (as such rule may be amended);
(2) the details of any relationship that existed within the past three (3) years
and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor
item) if it existed on the date of submission of Schedule 14N;
(3) the written agreement of the Eligible Stockholder (in the case of a group, each
stockholder or beneficial owner whose shares are aggregated for purposes of constituting an
Eligible Stockholder) addressed to the corporation, setting forth the following additional
agreements, representations, and warranties:
(A) setting forth and certifying to the number of shares of common stock it
Owns and has Owned continuously for at least three years as of the date of the
Stockholder Notice and agreeing to continue to Own such shares through the annual
meeting of stockholders, which statement shall also be included in the Schedule 14N
filed by the Eligible Stockholder with the SEC;
(B) the Eligible Stockholders agreement to provide written statements from
the record holder and intermediaries as required under section 9(g) verifying the
Eligible Stockholders continuous Ownership of the Required Shares, in each case
through and as of the business day immediately preceding the date of the annual
meeting;
(C) the Eligible Stockholders representation and warranty (i) that the
Eligible Stockholder (v) acquired the Required Shares in the ordinary course of
business and not with the intent or effect of changing or influencing control at
the corporation, and does not presently have any such intent, (w) has not nominated
and will not nominate for election to the board at the annual meeting any person
other than the Stockholder Nominee(s) being nominated pursuant to this section 9,
(x) has not engaged and will not engage in, and has not been and will not be a
participant (as defined in Item 4 of Exchange Act Schedule 14A) in, a solicitation
within the meaning of Rule 14a-1(l) of the Exchange Act, in support of the election
of any individual as a director at the annual meeting other than its Stockholder
Nominee or a nominee of the board, (y) has not distributed and will not distribute
to any stockholder any form of proxy for the annual meeting other than the form
distributed by the corporation, and (z) will Own the Required Shares through the
date of the annual meeting of stockholders, (ii) that the facts, statements and
other information in all communications by the Eligible Stockholder with the
corporation and its stockholders are and will be true and correct in all material
respects and do not and will not omit to state a material fact necessary in order
to make the statements made, in light of the circumstances under which they were
made, not misleading, and (iii) as to whether or not the Eligible Stockholder
intends to maintain qualifying Ownership of the Required Shares for at least one
year following the annual meeting;
(D) the Eligible Stockholders agreement to (i) assume all liability
stemming from any legal or regulatory violation arising out of the Eligible
Stockholders communications with the stockholders of the corporation or out of the
information that the Eligible Stockholder provided to the corporation, (ii)
indemnify and hold harmless the corporation and each of its directors, officers and
employees individually against any liability, loss or damages in connection with
any threatened or pending action, suit or proceeding, whether legal, administrative
or investigative, against the corporation or any of its directors, officers or
employees arising out of any nomination submitted by the Eligible Stockholder
pursuant to this section 9, (iii) comply with all laws, rules, regulations and
listing standards applicable to any solicitation in connection with the annual
meeting, (iv) file all materials described below in section 9(g)(3) with the SEC,
regardless of whether any such filing is required under Exchange Act Regulation
14A, or whether any exemption from filing is available for such materials under
Exchange Act Regulation 14A, and (v) provide to the corporation prior to the annual
meeting such additional information as necessary or reasonably requested by the
corporation; and
(4) In the case of a nomination by a group of stockholders or beneficial owners
that together is an Eligible Stockholder, the designation by all group members of one group
member that is authorized to act on behalf of all such members with respect to the
nomination and matters related thereto, including withdrawal of the nomination.
(f)
Delivery of Stockholder Notice
.
To be timely under this section 9, the
Stockholder Notice must be delivered by a stockholder to the secretary at the principal executive
offices of the corporation not later than the close of business on the 120th day nor earlier than
the close of business on the 150th day prior to the first anniversary of the date (as stated in the
corporations proxy materials) the definitive proxy statement was first sent to stockholders in
connection with the preceding years annual meeting of stockholders; provided, however, that in the
event the date of the annual meeting is more than 30 days before or after such anniversary date, or
if no annual meeting was held in the preceding year, to be timely the Stockholder Notice must be so
delivered not earlier than the close of business on the 150th day prior to such annual meeting and
not later than the close of business on the later of the 120th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such meeting is first
made by the corporation. In no event shall an adjournment or recess of an annual meeting, or a
postponement of an annual meeting for which notice has been given or with respect to which there
has been a public announcement of the date of the meeting, commence a new time period (or extend
any time period) for the giving of the Stockholder Notice as described above.
(g)
Undertaking by Eligible Stockholder
.
An Eligible Stockholder must:
(1) within five business days after the date of the Stockholder Notice, provide to
the secretary of the corporation one or more written statements from the record holder(s)
of the Required Shares and from each intermediary through which the Required Shares are or
have been held, in each case during the requisite three-year holding period, specifying the
number of shares that the Eligible Stockholder Owns, and has Owned continuously, in
compliance with this section 9;
(2) include in the Schedule 14N filed with the SEC a statement certifying that it
Owns and has Owned the Required Shares in compliance with this section 9;
(3) file with the SEC any solicitation or other communication by or on behalf of
the Eligible Stockholder relating to the corporations annual meeting of stockholders, one
or more of the corporations directors or director nominees or any Stockholder Nominee,
regardless of whether any such filing is required under Exchange Act Regulation 14A or
whether any exemption from filing is available for such solicitation or other communication
under Exchange Act Regulation 14A; and
(4) as to any group of funds whose shares are aggregated for purposes of
constituting an Eligible Stockholder, within five business days after the date of the
Stockholder Notice, provide documentation reasonably satisfactory to the corporation that
demonstrates that the funds satisfy section 9(b)(2). The information provided pursuant to
this section 9(g) shall be deemed part of the Stockholder Notice for purposes of this
section 9.
(h)
Representations and Agreement of the Stockholder Nominee
.
Within the
time period prescribed in section 9(f) for delivery of the Stockholder Notice, the Eligible
Stockholder must also deliver to the secretary of the corporation a written representation and
agreement (which shall be deemed part of the Stockholder Notice for purposes of this section 9)
signed by each Stockholder Nominee and representing and agreeing that such Stockholder Nominee:
(1) is not and will not become a party to (i) any Voting Commitment that has not
been disclosed to the corporation, or (ii) any Voting Commitment that could limit or
interfere with such persons ability to comply, if elected as a director of the
corporation, with such persons fiduciary duties under applicable law;
(2) is not and will not become a party to any agreement, arrangement, or
understanding with any person or entity other than the corporation with respect to any
direct or indirect compensation, reimbursement, or indemnification in connection with
service or action as a Stockholder Nominee or director that has not been disclosed to the
corporation; and
(3) if elected as a director, will comply with all of the corporations corporate
governance, conflict of interest, confidentiality, and stock ownership and trading policies
and guidelines, and any other corporation policies and guidelines applicable to directors,
as well as any applicable law, rule or regulation or listing requirement.
At the request of the corporation, the Stockholder Nominee must promptly, but in any event
within five business days after such request, submit all completed and signed questionnaires
required of the corporations directors and provide to the corporation such other information as it
may reasonably request. The corporation may request such additional information (x) as necessary to
permit the board or any committee thereof to determine if such Stockholder Nominee is independent
under the listing standards of any U.S. exchange upon which the corporations common stock is
listed, any rules of the Securities and Exchange Commission applicable to directors serving on the
board of directors or any committee thereof and any publicly disclosed standards used by the board
of directors in determining and disclosing the independence of the corporations directors (the
Applicable Independence Standards) and otherwise to determine the eligibility of each Stockholder
Nominee to serve as a director of the corporation, or (y) that could be material to a reasonable
stockholders understanding of the independence, or lack thereof, of each Stockholder Nominee.
(i)
True, Correct and Complete Information
.
In the event that any
information or communications provided by the Eligible Stockholder or any Stockholder Nominees to
the corporation or its stockholders is not, when provided, or thereafter ceases to be, true,
correct and complete in all material respects (including omitting a material fact necessary to make
the statements made, in light of the circumstances under which they were made, not misleading),
each Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the
secretary and provide the information that is required to make such information or communication
true, correct, complete and not misleading; it being understood that providing any such
notification shall not be deemed to cure any such defect or limit the corporations right to omit a
Stockholder Nominee from its proxy materials pursuant to this section 9. In addition, any person
providing any information to the corporation pursuant to this section 9 shall further update and
supplement such information, if necessary, so that all such information shall be true and correct
as of the record date for the annual meeting and as of the date that is ten (10) business days
prior to the annual meeting or any adjournment or postponement thereof, and such update and
supplement (or a written certification that no such updates or supplements are necessary and that
the information previously provided remains true and correct as of the applicable date) shall be
delivered to the secretary of the corporation at the principal executive offices of the corporation
not later than five (5) business days after the later of the record date for the annual meeting and
the date on which the record date is first publicly disclosed by the corporation (in the case of
any update and supplement required to be made as of the record date), and not later than seven (7)
business days prior to the date of the annual meeting or any adjournment or postponement thereof
(in the case of any update and supplement required to be made as of ten (10) business days prior to
the meeting).
(j)
Exceptions
.
Notwithstanding anything to the contrary contained in this
section 9, if a notice is delivered to the corporation (whether or not subsequently withdrawn)
under section 8(a)(2) indicating that any stockholder intends to nominate any candidate for
election to the board, the corporation may omit or, to the extent feasible, remove the information
concerning each Stockholder Nominee and the related Statement from its proxy materials and/or
otherwise communicate to its stockholders that such Stockholder Nominee(s) will not be eligible for
election at the annual meeting, and such nomination(s) shall be declared invalid and disregarded
notwithstanding that proxies in respect of such vote may have been received by the corporation.
(k)
Disqualifications
.
Notwithstanding anything to the contrary set forth
herein, if (i) an Eligible Stockholder who has nominated a Stockholder Nominee has engaged in or is
currently engaged in, or has been or is a participant in another persons, solicitation within
the meaning of Rule 14a-1(l) of the Exchange Act in support of the election of any individual as a
director at the meeting other than its Stockholder Nominee(s) or a nominee of the board of
directors, (ii) a Stockholder Nominee is determined not to satisfy the eligibility requirements of
this section 9 or any other provision of the corporations by-laws, certificate of incorporation,
corporate governance guidelines or other applicable regulation at any time before the annual
meeting, (iii) the election of a Stockholder Nominee to the board would cause the corporation to be
in violation of the certificate of incorporation, these by-laws, or any applicable state or federal
law, rule, regulation or listing standard, (iv) a Stockholder Nominee (A) is not independent under
the Applicable Independence Standards, (B) is or has been, within the past three years, an officer
or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as
amended, (C) is a named subject of a pending criminal proceeding (excluding traffic violations and
other minor offenses) or has been convicted in a criminal proceeding within the past ten years, (D)
is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the
Securities Act of 1933, as amended, or (E) dies, becomes disabled or otherwise becomes ineligible
for inclusion in the corporations proxy materials pursuant to this section 9 or unavailable for
election at the annual meeting, (v) a Stockholder Nominee and/or the applicable Eligible
Stockholder shall have breached any of its obligations, agreements or representations, or fails to
comply with its or their obligations pursuant to this section 9, including by providing information
to the corporation in respect to such nomination that was untrue in any material respect or omitted
to state a material fact necessary in order to make the statement made, in light of the
circumstances under which it was made, not misleading, (vi) the applicable Eligible Stockholder
otherwise ceases to be an Eligible Stockholder for any reason, including but not limited to not
Owning the Required Shares through the date of the applicable annual meeting of stockholders, in
each case as determined by the board of directors, any committee thereof or the person presiding at
the annual meeting, then (x) the corporation may omit or, to the extent feasible, remove the
information concerning such Stockholder Nominee and the related Statement from its proxy materials
and/or otherwise communicate to its stockholders that such Stockholder Nominee will not be eligible
for election at the annual meeting, (y) the corporation shall not be required to include in its
proxy materials any successor or replacement nominee proposed by the applicable Eligible
Stockholder or any other Eligible Stockholder and (z) the board of directors or the person
presiding at the annual meeting shall declare such nomination to be invalid and such nomination
shall be disregarded notwithstanding that proxies in respect of such vote may have been received by
the corporation. In addition, if the Eligible Stockholder (or a representative thereof) does not
appear at the annual meeting to present any nomination pursuant to this section 9, such nomination
shall be declared invalid and disregarded as provided in clause (z) above.
(l)
Maximum Number of Stockholder Nominees
.
The maximum number of
Stockholder Nominees that may be included in the corporations proxy materials pursuant to this
section 9 shall not exceed the greater of (i) two or (ii) twenty percent (20%) of the number of
directors in office as of the last day on which a Stockholder Notice may be delivered pursuant to
this section 9 with respect to the annual meeting, or if such amount is not a whole number, the
closest whole number below twenty percent (20%): provided, however, that this number shall be
reduced by:
(1) any Stockholder Nominee whose name was submitted for inclusion in the
corporations proxy materials pursuant to this section 9 but either is subsequently
withdrawn or that the board of directors decides to nominate as a board nominee;
(2) the number of incumbent directors who were Stockholder Nominees at any of the
preceding two annual meetings (including any individual covered under clause (1) above) and
whose election at the upcoming annual meeting is being recommended by the board of
directors; and
(3) the number of directors in office or director candidates that in either case
will be included in the corporations proxy materials with respect to such annual meeting
as an unopposed (by the corporation) nominee pursuant to any agreement, arrangement or
other understanding with any stockholder or group of stockholders (other than any such
agreement, arrangement or understanding entered into in connection with an acquisition of
common stock, by such stockholder or group of stockholders, from the corporation), other
than any such director referred to in this clause (3) who at the time of such annual
meeting will have served as a director continuously, as a nominee of the board of
directors, for at least two annual terms, but only to the extent the maximum number of
Stockholder Nominees after such reduction with respect to this clause (3) equals or exceeds
one (1).
If the board resolves to reduce the size of the board effective on or prior to the date of the
annual meeting, then the maximum number shall be calculated based on the number of directors in
office as so reduced. In the event that the number of Stockholder Nominees submitted by Eligible
Stockholders pursuant to this section 9 exceeds this maximum number, the corporation shall
determine which Stockholder Nominees shall be included in the corporations proxy materials in
accordance with the following provisions: each Eligible Stockholder (or in the case of a group,
each group constituting an Eligible Stockholder) will select one Stockholder Nominee for inclusion
in the corporations proxy materials until the maximum number is reached, going in order of the
amount (largest to smallest) of shares of the corporation each Eligible Stockholder disclosed as
Owned in its respective Stockholder Notice submitted to the corporation. If the maximum number is
not reached after each Eligible Stockholder (or in the case of a group, each group constituting an
Eligible Stockholder) has selected one Stockholder Nominee, this selection process will continue as
many times as necessary, following the same order each time, until the maximum number is reached.
If any such Stockholder Nominee is thereafter (i) nominated by the board, (ii) not included in the
corporations proxy materials for any reason (including, without limitation, any determination that
such Eligible Stockholder or Stockholder Nominee does not satisfy the requirements in this section
9) or (iii) not submitted for director election for any reason (including, without limitation, the
Eligible Stockholders or Stockholder Nominees failure to comply with this section 9), no other
nominee or nominees shall be included in the corporations proxy materials or otherwise submitted
for director election in substitution thereof.
(m)
Disqualified Stockholder Nominee
.
Any Stockholder Nominee who is
included in the corporations proxy materials for a particular annual meeting of stockholders but
withdraws from or becomes ineligible or unavailable for election at the annual meeting for any
reason, including for the failure to comply with any provision of these by-laws (provided that in
no event shall any such withdrawal, ineligibility or unavailability commence a new time period (or
extend any time period) for the giving of a Stockholder Notice) will be ineligible to be a
Stockholder Nominee pursuant to this section 9 for the next two annual meetings.
(n)
Authority of the Board
.
The board (and any other person or body
authorized by the board) shall have the power and authority to interpret this section 9 and to make
any and all determinations necessary or advisable to apply this section 9 to any persons, facts or
circumstances, including the power to determine (i) whether one or more stockholders or beneficial
owners qualifies as an Eligible Stockholder, (ii) whether a Stockholder Notice complies with this
section 9 and has otherwise met the requirements of this section 9, (iii) whether a Stockholder
Nominee satisfies the qualifications and requirements in this section 9, and (iv) whether any and
all requirements of this section 9 (or any applicable requirements of Article I, section 8) have
been satisfied. Any such interpretation or determination adopted in good faith by the board (or
any other person or body authorized by the board) shall be binding on all persons, including the
corporation and its stockholders (including any beneficial owners). This section 9 shall be the
exclusive method for stockholders to include nominees for director election in the corporations
proxy materials.
ARTICLE II
DIRECTORS
SECTION 1. Organizational Meetings:
The board of directors may hold a meeting for
the purpose of organization and the transaction of other business, if a quorum be present,
immediately before or after the annual meeting of the stockholders and immediately before or after
any special meeting at which directors are elected. Notice of such meeting need not be given. Such
organizational meeting may be held at any other time or place, which shall be specified in a notice
given as hereinafter provided for special meetings of the board of directors, or in a consent and
waiver of notice thereof signed by all the directors.
SECTION 2. Regular Meetings:
Regular meetings of the board of directors shall be
held on such dates as are designated, from time to time, by resolutions of the board, and shall be
held at the principal office of the corporation, or at such other location or locations as the
board selects. Each regular meeting shall commence at the time designated by the chairman of the
board on at least five (5) days written notice to each director when sent by mail and on at least
three (3) days notice when delivered in person or by telephone, courier, electronic
communications, facsimile or similar means. Notwithstanding the preceding, any meeting of the
board of directors shall be a legal meeting without any notice thereof if all the members of the
board shall be present, or if all absent members waive notice thereof.
SECTION 3. Special Meetings: How Called: Notice:
Special meetings of the board
of directors may be called by the chairman of the board, a vice chairman of the board, the
president or a majority of the directors. Written notice of the time, place and purposes of each
special meeting shall be delivered in person or by telephone, courier, electronic communications,
facsimile or similar means to each director at least twenty-four (24) hours prior to such meeting.
Notwithstanding the preceding, any meeting of the board of directors shall be a legal meeting
without any notice thereof if all the members of the board shall be present, or if all absent
members waive notice thereof.
SECTION 4. Number: Qualifications: Quorum: Term:
(a) The Board of Directors shall determine the number of directors on the board,
which shall be at least seven (7) and no more than fifteen (15).
(b) No person shall be eligible to become or to remain a director of the
corporation unless the person is a stockholder in the corporation. Not more than six (6) of the
members of the board of directors shall be officers or employees of the corporation; but the
chairman of the board shall not be deemed such an officer or employee.
(c) Subject to the provisions of the certificate of incorporation, as amended, a
majority of the total number of the directors shall constitute a quorum for the transaction of
business. The affirmative vote of the majority of the directors present at a meeting at which a
quorum is constituted shall be the act of the board of directors, unless the certificate of
incorporation shall require a vote of a greater number.
(d) Except as otherwise provided in these by-laws, directors shall hold office
until the next succeeding annual stockholders meeting and thereafter until their successors are
respectively elected and qualified.
SECTION 5. Place of Meetings:
The board of directors may hold its meetings and
keep the books of the corporation within or outside of the State of Delaware, at any office or
offices of the corporation, or at any other place, as it may from time to time by resolution
determine.
SECTION 6. Adjournment of Meetings:
If less than a quorum shall be present at any meeting
of the board of directors of the corporation, or of the executive committee of the board, or other
committee, the meeting may be adjourned from time to time by a majority vote of members present,
without any notice other than by announcement at the meeting, until a quorum shall attend. Any
meeting at which a quorum is present may also be adjourned in like manner, for such time or upon
such call, as may be determined by vote. At any such adjourned meeting at which a quorum may be
present, any business may be transacted which might have been transacted at the meeting originally
held if a quorum had been present thereat.
SECTION 7. Powers of Directors:
The business and affairs of the corporation shall be
managed under the direction of the board of directors. Subject to the restrictions imposed by law,
by the certificate of incorporation or by these by-laws, the board of directors may exercise all
the powers of the corporation.
SECTION 8. Vacancies:
Except as otherwise provided in the certificate of
incorporation, any vacancy in the board of directors because of death, resignation,
disqualification, increase in number of directors, or any other cause may be filled by a majority
of the remaining directors, though less than a quorum, at any regular or special meeting of the
directors; or any such vacancy resulting from any cause whatsoever may be filled by the
stockholders at the first annual meeting held after such vacancy shall occur or at a special
meeting thereof called for the purpose.
SECTION 9. Resignation of Directors:
Any director of the corporation may resign at
any time by giving written notice to the chairman of the board or to the secretary of the
corporation. Such resignation shall take effect at the time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 10. Compensation of Directors:
The board of directors shall have the
authority to fix the compensation of directors. In addition, each director shall be entitled to be
reimbursed by the corporation for expenses incurred in attending meetings of the board of directors
or of any committee of which he or she is a member. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and receiving compensation
for such services from the corporation; provided, however, that any person who is receiving a
stated compensation as an officer of the corporation for services as such officer shall not receive
any additional compensation for services as a director during such period. A director entitled to
receive stated compensation for services as director, who shall serve for only a portion of a year,
shall be entitled to receive only that portion of the annual stated compensation on which the
period of service during the year bears to the entire year. The annual compensation of directors
shall be paid at such times and in such installments as the board of directors may determine.
SECTION 11. Executive Committee:
(a) The board of directors may in its discretion appoint an executive committee.
(b) Not more than four (4) members shall be officers or employees of the
corporation but the chairman of the board shall not be deemed such an officer or employee.
(c) A majority shall constitute a quorum, and in every case the affirmative vote of
a majority of all the members of the committee shall be necessary for the adoption of any motion,
provided that in order to procure and maintain a quorum at any meeting of the executive committee
in the absence or disqualification of any member of such committee, the member or members thereof
present at such meeting and not disqualified from voting, whether or not they constitute a quorum,
may unanimously appoint another member of the board of directors (subject always to the limitations
of subsection (b) above) to act at the meeting in the place of any such absent or disqualified
member
(d) Each member of the executive committee, if appointed, shall hold office until
the election at the next succeeding annual meeting of the stockholders of the corporation of a new
board of directors; subject to the provisions of section 14 of this article.
SECTION 12. Executive Committee: Powers:
During the intervals between the
meetings of the board of directors, the executive committee shall have and may exercise all the
powers of the board of directors in the direction of the business and affairs of the corporation,
including power to authorize the execution of any papers and to authorize the seal of the
corporation to be affixed to all papers which may require it, in such manner as such committee
shall deem best for the interests of the corporation, in all cases in which specific directions
shall not have been given by the board of directors.
SECTION 13. Executive Committee: Organization: Meetings, Etc.:
The chairman of
the executive committee shall preside at all meetings of the executive committee and the secretary
of the corporation shall act as secretary of the executive committee. In the absence of the
chairman of the executive committee the committee shall appoint another member thereof to act as
chairman of the meeting, and in the absence of the secretary, an assistant secretary of the
corporation shall act as secretary of the meeting. In the absence of all of such persons, the
committee shall appoint a chairman or a secretary of the meeting, as the case may be. If an
executive committee shall be appointed it shall hold regular meetings on such dates and at such
times and places as the chairman or a majority of the members of the executive committee shall
determine, unless the board of directors shall otherwise provide. A special meeting of the
executive committee may be called by the chairman of the board, the chairman of the executive
committee or the secretary of the corporation upon such notice as may be given for special meetings
of the board of directors. Any meeting of the executive committee shall be a legal meeting without
notice thereof if all the members of the committee shall be present or if all absent members waive
notice thereof. The committee shall keep a record of its acts and proceedings and report thereon to
the board of directors at the regular meeting thereof held next after they shall have been taken.
SECTION 14. Resignation and Removal of Member of Executive Committee:
Any member
of the executive committee may resign at any time or may be removed at any time either with or
without cause by resolution adopted by a majority of the whole board of directors at any meeting of
the board of directors at which a quorum is present.
SECTION 15. Vacancies in the Executive Committee:
Any vacancy in the executive
committee shall be filled in the manner prescribed by these by-laws for the original appointment of
such committee.
SECTION 16. Other Committees:
The board of directors may by resolution designate
one or more other committees, in addition to the executive committee, each of which shall consist
of two or more directors of the corporation. The board of directors may designate one or more
directors as alternate members of any such other committee, who may replace any absent or
disqualified member at any meeting of such committee. Any such other committee may, to the extent
permitted by law, exercise such powers and shall have such responsibilities as shall be specified
in the designating resolution. In the absence or disqualification of any member of such committee
or committees, the member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another member of the board
of directors to act at the meeting in the place of any such absent or disqualified member. Each
such committee shall keep written minutes of its proceedings and shall report such proceedings to
the board of directors when required. The chairman or a majority of the members of any such other
committee may fix the time and place of its meetings, unless the board of directors shall otherwise
provide. Notice of such meetings shall be given to each member of the committee in the manner
provided for in sections 2 and 3 of this article II with respect to meetings of the board of
directors. A majority of the members of the committee shall constitute a quorum for transacting
business at a meeting. The committee may take action by the affirmative vote of a majority of the
committee members present at a meeting. The board of directors shall have power at any time to
fill vacancies in, to change the membership of, or to dissolve any such committee. Nothing herein
shall be deemed to prevent the board of directors from appointing one or more committees consisting
in whole or in part of persons who are not directors of the corporation; provided, however, that no
such committee shall have or may exercise any authority limited by law to the board of directors or
a committee thereof.
SECTION 17. Electronic Communications at Meetings:
Members of the board of
directors, or any committee thereof, may participate in a meeting of the board of directors or such
committee by means of communication through which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in person at such
meeting.
ARTICLE III
OFFICERS
SECTION 1. Election:
The board of directors shall elect a chairman of the board, a
chief executive officer, who may also be the chairman of the board, a secretary and a treasurer.
The board of directors may elect such other officers, including a president, a chief financial
officer, a chief operating officer, a controller, and one or more vice chairmen, executive vice
presidents, senior vice presidents, vice presidents, division presidents, assistant secretaries and
assistant treasurers, and any such officer shall exercise such powers and perform such duties as
may be provided by these bylaws or assigned by the board of directors or the chief executive
officer. The chief executive officer may appoint one or more vice presidents, division presidents,
assistant secretaries and assistant treasurers and any such officers shall exercise such powers and
perform such duties as may be assigned by the board of directors or the chief executive officer.
Any two of the offices may be held by the same person.
SECTION 2. Term of Office.
The board of directors shall elect corporate officers at least
annually, and any officer elected by the board of directors shall hold office until his or her
successor is elected and qualified or until his or her earlier resignation or removal.
SECTION 3. Chairman:
The chairman of the board shall preside at all meetings of the board,
all meetings of the stockholders, as well as all meetings of the executive committee. He or she
shall also exercise such other powers and perform such duties as the board of directors may from
time to time direct or as may be required by law.
SECTION 4. Chief Executive Officer:
The chief executive officer shall have supervisory
authority over the policies of the corporation as well as the management and control of the
business and affairs of the corporation. He or she shall also exercise such other powers and
perform such duties as the board of directors may from time to time direct or as may be required by
law.
SECTION 5. Secretary:
The secretary shall:
(a) keep the minutes of the meetings of the stockholders, of the board of directors
and of the executive committee in books provided for the purpose;
(b) see that all notices are duly given in accordance with the provisions of these
by-laws or as required by law;
(c) be custodian of the corporate books and records and have charge of the seal of
the corporation and see that it is affixed to all stock certificates prior to their issuance and to
all documents the execution of which on behalf of the corporation under its seal is duly authorized
in accordance with the provisions of these by-laws;
(d) have charge of the stock records of the corporation and keep or cause to be
kept the stock and transfer records in such manner as to show at any time the amount of the stock
of the corporation issued and outstanding, the manner in which and the time when such stock was
paid for, the names, alphabetically arranged, and the addresses of the holders of record thereof,
the number of shares held by each, and the time when each became such holder of record; exhibit or
cause to be exhibited at all reasonable times to any director, upon application, the original or
duplicate stock ledger;
(e) see that the books, reports, statements, certificates and all other documents
and records required by law are properly kept, executed and filed; and
(f) in general, perform all duties incident to the office of secretary, and such
other duties as from time to time may be assigned by the board of directors or as may be required
by law.
SECTION 6. Treasurer:
The treasurer, if required so to do by the board of
directors, shall give a bond for the faithful discharge of his or her duties in such sum, and with
such sureties, as the board of directors or the chief executive officer shall require. The
treasurer shall:
(a) have charge and custody of, and be responsible for, all funds and securities of
the corporation (until deposited to the credit or account of the corporation with an authorized
depositary) and deposit all such funds in the name of the corporation in such banks, banking firms,
trust companies or other depositaries as shall be selected in accordance with the provisions of
article V of these by-laws;
(b) exhibit at all reasonable times the books of account and records to any of the
directors of the corporation upon application during business hours at the office of the
corporation where such books and records are kept;
(c) receive, and give receipt for, moneys due and payable to the corporation from
any source whatsoever; and
(d) in general, perform all the duties incident to the office of treasurer and such
other duties as from time to time may be assigned by the board of directors or as may be required
by law
SECTION 7. Resignation and Removal of Officers:
Any officer of the corporation may
resign at any time by giving written notice to the chairman of the board, chief executive officer
or to the secretary. Such resignation shall take effect at the time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it
effective.
Any officer may be removed, with or without cause, at any time by the affirmative vote
of a majority of the board of directors. Any officer appointed by the chief executive officer may
also be removed, with or without cause, at any time by the chief executive officer.
SECTION 8. Salaries:
The salaries of officers shall be fixed from time to time by
the board of directors, the compensation committee or other committee appointed by the board. The
board of directors or the compensation committee of the board may authorize and empower the chief
executive officer, the president, any vice chairman, or any vice president of the corporation to
fix the salaries of all officers of the corporation who are not directors of the corporation. No
officer shall be prevented from receiving a salary by reason of the fact that he or she is also a
director of the corporation.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Issue of Certificates and Uncertificated Stock:
Shares of the capital
stock of the corporation shall be represented by certificates or uncertificated and shall be in
such forms as shall be approved by the board of directors. Each stockholder shall be entitled to a
certificate for shares of stock under the seal of the corporation, signed by the chairman, the
president, a vice chairman or a vice president and also by the secretary or an assistant secretary
or by the treasurer or an assistant treasurer; provided, however, that where a certificate is
countersigned by a transfer agent, other than the corporation or its employee, or by a registrar,
other than the corporation or its employee, the corporate seal and any other signature on such
certificate may be a facsimile, engraved, stamped or printed. In case any officer, transfer agent
or registrar of the corporation who shall have signed, or whose facsimile signature shall have been
used on any such certificate, shall cease to be such officer, transfer agent or registrar, whether
because of death, resignation, or otherwise, before such certificate shall have been delivered by
the corporation, such certificate shall nevertheless be deemed to have been adopted by the
corporation and may be issued and delivered as though the person who signed such certificate or
whose facsimile signature shall have been used thereon had not ceased to be such officer, transfer
agent or registrar.
SECTION 2. Transfer of Shares:
The shares of stock of the corporation shall be
transferable upon its books by the holders thereof in person or by their duly authorized attorneys
or legal representatives, and upon such transfer the old certificates shall be surrendered to the
corporation by the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the board of directors may designate, by whom they shall be
cancelled, and new certificates shall thereupon be issued for the shares so transferred to the
person entitled thereto. Upon a transfer of uncertificated shares, the record of such persons
stock shall be cancelled and shares shall be transferred to the person entitled thereto upon the
issuance of a certificate or an electronic transfer of such shares. A record shall be made of each
transfer and whenever a transfer shall be made for collateral security, and not absolutely, it
shall be so expressed in the entry of the transfer.
SECTION 3. Dividends:
The board of directors may declare lawful dividends as and
when it deems expedient. Before declaring any dividend, there may be reserved out of the
accumulated profits such sum or sums as the board of directors from time to time, in its
discretion, thinks proper for working capital or as a reserve fund to meet contingencies or for
equalizing dividends, or for such other purposes as the board of directors shall think conducive to
the interests of the corporation.
SECTION 4. Lost Certificates:
Any person claiming a certificate of stock to be
lost or destroyed shall make an affidavit or affirmation of that fact, and if requested to do so by
the board of directors of the corporation shall advertise such fact in such manner as the board of
directors may require, and shall give to the corporation, its transfer agent and registrar, if any,
a bond of indemnity in such sum as the board of directors may direct, in a form satisfactory to the
board of directors and to the transfer agent and registrar of the corporation, if any, and with or
without sureties as the board of directors with the approval of the transfer agent and registrar,
if any, may prescribe; whereupon the chairman, the president, a vice chairman or a vice president
and the treasurer or an assistant treasurer or the secretary or an assistant secretary may cause to
be issued a new certificate of the same tenor and for the same number of shares as the one alleged
to have been lost or destroyed. The issuance of such new certificates shall be under the control of
the board of directors.
SECTION 5. Rules as to Issue of Certificates:
The board of directors may make such
rules and regulations as it may deem expedient concerning the issue, transfer and registration of
certificates of stock of the corporation. It may appoint one or more transfer agents and/or
registrars of transfers, and may require all certificates of stock to bear the signature of either
or both. Each and every person accepting from the corporation certificates of stock therein shall
furnish the corporation with a written statement of his or her residence or post office address,
and in the event of changing such residence shall advise the corporation of such new address.
SECTION 6. Holder of Record Deemed Holder in Fact:
The board of directors shall be
entitled to treat the holder of record of any share or shares of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other claim to, or
interest in, such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by law.
SECTION 7. Fixing Record Date:
The board of directors shall have the power to fix
in advance a date, not exceeding sixty (60) days preceding the date of any meeting of stockholders
or the date for the payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect, as a record date
for the determination of the stockholders entitled to notice of, and to vote at, any such meeting,
or entitled to receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or exchange of capital stock, and in
such case only such stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend,
or to receive such allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after any such record
date fixed as aforesaid.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Contracts, Etc.: How Executed:
The board of directors or such officer
or person to whom such power shall be delegated by the board of directors by resolution, except as
in these by-laws otherwise provided, may authorize any officer or officers, agent or agents, either
by name or by designation of their respective offices, positions or class, to enter into any
contract or execute and deliver any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances; and, unless so authorized, no
officer, agent or employee shall have any power or authority to bind the corporation by any
contract or engagement, or to pledge its credit or to render it liable pecuniarily for any purpose
or in any amount.
SECTION 2. Loans:
No loans shall be contracted on behalf of the corporation and no
negotiable paper shall be issued in its name, unless and except as authorized by the vote of the
board of directors or by such officer or person to whom such power shall be delegated by the board
of directors by resolution. When so authorized by the board of directors or by such officer or
person to whom such power shall be delegated by the board of directors by resolution, any officer
or agent of the corporation may obtain loans and advances at any time for the corporation from any
bank, banking firm, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances may make, execute and deliver promissory notes, bonds
or other evidences of indebtedness of the corporation, and, when authorized as aforesaid to give
security for the payment of any loan, advance, indebtedness or liability of the corporation, may
pledge, hypothecate or transfer any and all stocks, securities and other personal property at any
time held by the corporation, and to that end endorse, assign and deliver the same, but only to the
extent and in the manner authorized by the board of directors. Such authority may be general or
confined to specific instances.
SECTION 3. Deposits:
All funds of the corporation shall be deposited from time to
time to the credit of the corporation with such banks, banking firms, trust companies or other
depositaries as the board of directors may select or as may be selected by any officer or officers,
agent or agents of the corporation to whom such power may be delegated from time to time by the
board of directors.
SECTION 4. Checks, Drafts, Etc.:
All checks, drafts or other orders for the
payment of money, notes, acceptances, or other evidences of indebtedness issued in the name of the
corporation, shall be signed by such officer or officers, agent or agents of the corporation and in
such manner as shall be determined from time to time by resolution of the board of directors or by
such officer or person to whom such power of determination shall be delegated by the board of
directors by resolution. Endorsements for deposit to the credit of the corporation in any of its
authorized depositaries may be made, without any countersignature, by the chairman of the board,
the president, a vice chairman, or any vice president, or the treasurer or any assistant treasurer,
or by any other officer or agent of the corporation appointed by any officer of the corporation to
whom the board of directors, by resolution, shall have delegated such power of appointment, or by
hand-stamped impression in the name of the corporation.
SECTION 5. Transaction of Business:
The corporation, or any division or department
into which any of the business or operations of the corporation may have been divided, may transact
business and execute contracts under its own corporate name, its division or department name, a
trademark or a trade name.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. Fiscal Year:
The fiscal year of the corporation shall end with the last
Sunday of May of each year.
SECTION 2. Notice and Waiver of Notice:
Whenever any notice is required by these
by-laws to be given, it may be delivered in person or by mail, telephone, courier, electronic
communications, facsimile transmission or similar means. In person notice is not delivered until
expressly so stated. Notice by mail shall be deemed delivered when deposited with postage prepaid,
and addressed to the person entitled to notice at an address as shown on the stock records of the
corporation, in case of a stockholder, or at the last known post office address otherwise.
Telephone or courier notice shall be deemed given when the person entitled to notice, or a person
reasonably expected to convey the notice, receives it. Electronic communications or facsimile
transmission shall be deemed delivered once transmitted to the last address or number provided to
the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting. Whenever notice is required to be given under these by-laws, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice.
SECTION 3. Inspection of Books:
The board of directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations the accounts,
records and books of the corporation (except such as may, by statute, be specifically open to
inspection), or any of them, shall be open to the inspection of the stockholders, and the
stockholders rights in this respect are and shall be restricted and limited accordingly.
SECTION 4. Construction:
All references herein (i) in the plural shall be
construed to include the singular, (ii) in the singular shall be construed to include the plural
and (iii) in the masculine gender shall be construed to include the feminine gender, if the context
so requires.
SECTION 5. Indemnification:
(a) The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact that he or she is or
was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the person in connection
with such action, suit or proceeding to the fullest extent permitted by Delaware law. The
corporation shall not be required to indemnify any person in connection with any action, suit or
proceeding initiated by such person.
(b) To the extent that a present or former director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsection (a), or in defense of any claim, issue or matter therein, the
person shall be indemnified or reimbursed against expenses (including attorneys fees) actually and
reasonably incurred by such person in connection therewith.
(c) Any indemnification under sub-section (a) (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct under Delaware law.
Such determination shall be made, with respect to a person who is a present or former director or
officer, (1) by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (3) if there are no such
directors, or, if such directors so direct, by independent legal counsel in a written opinion or
(4) by the stockholders. In the case of a determination with respect to employees or agents (who
are not present or former directors or officers of the corporation), the determination shall be
made by the chief executive officer or the general counsel.
(d) Expenses (including attorneys fees) incurred by a present or former officer or
director in defending a civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
(e) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such office.
(f) The corporation shall have power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against any such person and incurred by any such person in any such capacity, or arising out of his
or her status as such, whether or not the corporation would have the power to indemnify such person
against such liability under the provisions of this section.
(g) For purposes of this section, references to the corporation shall include, in
addition to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and employees or agents,
so that any person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to the resulting or
surviving corporation as the person would have with respect to such constituent corporation if its
separate existence had continued.
(h) For purposes of this section, references to other enterprises shall include
employee benefit plans; references to fines shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to serving at the request of the
corporation shall include any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in
good faith and in a manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not
opposed to the best interests of the corporation as referred to in this section.
(i) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(j) Each person who has been, is or becomes a director, officer, employee or agent as
described in subsection (a) of this section shall be deemed to have served or to have continued to
serve in such capacity in reliance upon the indemnity permitted in this section during the term of
their service. Any subsequent modification or repeal of this section shall not adversely affect any
right or protection existing under this section with respect to any acts or events occurring prior
to the time of such modification or repeal.
SECTION 6. Resolution of Board of Directors Providing for Issuance of Cumulative
Preference Stock:
For purposes of these by-laws the certificate of incorporation shall be deemed
to include any certificate filed and recorded in accordance with section 151(g) of the Delaware
Corporation Law which, in accordance with said section, sets forth the resolution or resolutions
adopted by the board of directors providing for the issuance of cumulative preference stock or any
series thereof.
SECTION 7
.
Exclusive Forum Provisions
: Unless the corporation consents in writing to the
selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole
and exclusive forum for (i) any derivative action or proceeding brought on behalf of the
corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director,
officer or other employee of the corporation to the corporation or the corporations stockholders,
(iii) any action asserting a claim arising pursuant to any provision of the Delaware General
Corporation Law, or the corporations certificate of incorporation or by-laws, or (iv) any action
asserting a claim governed by the internal affairs doctrine; provided that the foregoing provision
shall not apply in the event that the action could not be brought in the Court of Chancery of the
State of Delaware because of the inability to join an indispensable party, which party could be
joined in the action in another forum. Any person or entity owning, purchasing or otherwise
acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice
of and to have consented to the provisions of this by-law.
ARTICLE VII
AMENDMENTS
SECTION 1. Amendment of By-Laws:
All by-laws of the corporation shall be subject
to alteration or repeal, and new by-laws may be made, either by the stockholders at an annual
meeting or at any special meeting, provided notice of the proposed alteration or repeal or of the
proposed new by-laws be included in the notice of any such special meeting, or by the affirmative
vote of a majority of the whole board of directors of the corporation at any regular meeting or at
any special meeting of the board of directors, provided that notice of the proposed alteration or
repeal or of the proposed new by-laws be included in the notice of any such special meeting; and
provided further that no by-law shall be adopted which shall be in conflict with the provisions of
the certificate of incorporation or any amendment thereto. By-laws made or altered by the
stockholders or by the board of directors shall be subject to alteration or repeal either by the
stockholders or by the board of directors; provided, however, that the board of directors shall
have no power or authority to alter or repeal sub-section (b) of section 4 or sub-section (b) of
section 11 of article II of these by-laws
,
respecting eligibility of officers or employees of the
corporation as members of the board of directors and of the executive committee of the board or to
make any alteration in sub-section (a) of section 4 of said article II which would reduce the
number composing the board of directors below seven (7) or above fifteen (15)
;
the sole right to
make any such change being reserved to the stockholders. So long as any class or classes of stock
or any one or more series of any class or classes of stock which have a separate vote as such class
or series for the election of directors by such class or series shall be outstanding, no
alteration, amendment, or repeal of the provisions of sections 2, 3, 4, 5 and 6 of article I,
sections 1, 4, 8 and 9 of article II, section 6 of article VI, and article VII of these by-laws
which affects adversely the rights or preferences of any such outstanding class or series of stock
shall be made without the consent or affirmative vote of the holders of at least two-thirds (2/3)
of each such class or series entitled to vote; provided, however, that any increase or decrease in
the number of directors set forth in the first sentence of sub-section (a) of section 5 of article
II shall not be deemed adversely to affect such rights or preferences.
Page
ARTICLE I.
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Section 1.
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Section 2.
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Section 3.
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Section 4.
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Section 5.
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Section 6.
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Section 7.
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Section 8.
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Section 9.
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ARTICLE II.
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Section 1.
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Section 2.
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Section 3.
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Section 4.
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Section 5.
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Section 6.
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Section 7.
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Section 8.
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Section 9.
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Section 10.
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Section 11.
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Section 12.
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Section 13.
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Section 14.
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Section 15.
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Section 16.
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Section 17.
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ARTICLE III.
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Section 1.
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Section 2.
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Section 3.
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Section 4.
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Section 5.
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Section 6.
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Section 7.
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Section 8.
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ARTICLE IV.
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Section 1.
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Section 2.
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Section 3.
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Section 4.
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Section 5.
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Section 6.
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Section 7.
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ARTICLE V.
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Section 1.
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Section 2.
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Section 3.
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Section 4.
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Section 5.
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ARTICLE VI.
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Section 1.
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Section 2.
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Section 3.
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Section 4.
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Section 5.
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Section 6.
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Section 7.
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ARTICLE VII.
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Section 1.
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of
GENERAL MILLS, INC.
Exhibit 99.1
FOR IMMEDIATE RELEASE
March 8, 2016
Contact: (analysts) Jeff Siemon: 763-764-2301
(media) Kirstie Foster: 763-764-6364
GENERAL MILLS ELECTS MARIA HENRY TO ITS BOARD OF DIRECTORS
Board Also Declares 5 Percent Dividend Increase
MINNEAPOLIS, MINN.General Mills (NYSE: GIS) today elected Maria G. Henry to its board of directors effective June 1, 2016.
Ms. Henry currently serves as Senior Vice President and Chief Financial Officer for the Kimberly-Clark Corporation, a global consumer products company, which she joined in 2015. Prior to joining Kimberly-Clark, Ms. Henry was Executive Vice President and Chief Financial Officer of Hillshire Brands, formerly known as Sara Lee Corporation. Earlier in her career, Ms. Henry served in various senior leadership positions in Finance and Strategy at three portfolio companies of Clayton, Dubilier, and Rice, most recently as Executive Vice President and Chief Financial Officer for Culligan International.
Maria brings an excellent track record of financial leadership and shareholder value creation to our board, said Ken Powell, General Mills Chairman and CEO. Her consumer packaged goods experience and her background in public and private companies will be assets as we continue to drive strong returns for General Mills shareholders.
In other action at its regularly scheduled March meeting, the General Mills board declared a quarterly dividend of $0.46 per share, payable May 2, 2016, to shareholders of record April 11, 2016. This represents a 4.5 percent increase from the previous quarterly rate of $0.44 per share, and marks the seventh time General Mills has increased its quarterly dividend rate since 2010. Including the new May quarterly payment, General Mills dividends per share in fiscal 2016 will total $1.78, up 7 percent from the annual dividend of $1.67 paid the previous fiscal year.
About General Mills
General Mills is a leading global food company that serves the world by making food people love. Its brands include Cheerios, Annies, Yoplait, Nature Valley, Fiber One, Häagen-Dazs, Betty Crocker, Pillsbury, Old El Paso, Wanchai Ferry, Yoki and more. Headquartered in Minneapolis, Minnesota, USA, General Mills had fiscal 2015 worldwide net sales of US $18.7 billion, including the companys US $1.1 billion proportionate share of joint-venture net sales.