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): June 17,
2008
THE
TORO COMPANY
(Exact
name of registrant as specified in its charter)
|
Delaware
|
1-8649
|
41-0580470
|
|
(State
of Incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification Number)
|
|
8111
Lyndale Avenue South
Bloomington, Minnesota
(Address
of principal executive offices)
|
55420
(Zip
Code)
|
Registrant’s
telephone number, including area code: (952) 888-8801
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))
Section
5 — Corporate Governance and Management
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On June
16, 2008, the rights agreement between The Toro Company and Wells Fargo Bank, NA
(f/k/a Norwest Bank of Minnesota) dated as of May 20, 1998, as amended, and the
related rights to purchase Series B Junior Participating Voting Preferred Stock,
expired by their terms. Accordingly, on June 17, 2008, our Board of
Directors adopted (i) a resolution to eliminate the Series B Junior
Participating Voting Preferred Stock from our Certificate of Incorporation, and
(ii) a Restated Certificate of Incorporation to reflect the elimination of
the Series B Junior Participating Voting Preferred Stock. A copy of
the Restated Certificate of Incorporation is filed as Exhibit 3.1 to this Form
8-K and is incorporated by reference into this Item 5.03.
Also on
June 17, 2008, our Board of Directors adopted amendments to our Bylaws to
increase the notice period and expand the information required to be provided by
a shareholder who submits a nomination for election to our Board of Directors or
other proposal for business to be brought before a meeting of
shareholders. The amendments increase the standard advance notice
period for shareholder nominations or proposals to not less than 90 days and not
more than 120 days prior to the first anniversary of the preceding year’s annual
meeting of shareholders, as compared to the prior advance notice period of not
less than 45 days and not more than 90 days. In addition, the
amendments require a shareholder who submits a nomination or other proposal to
disclose, among other things, information about the proposed nominee and his or
her relationships with the shareholder submitting the nomination, information
about any agreements, arrangements or understandings the shareholder may have
with the proposed nominee or other parties relating to the nomination or other
proposal, and information about the interests that the shareholder has related
to Toro and our shares, including as a result of, among other things, derivative
securities, voting arrangements, short positions or other
interests. A shareholder who submits a nomination or proposal is
required to update the information previously disclosed as of the record date
for the meeting of shareholders and as of the date that is eight business days
prior to the date of the meeting of shareholders. A copy of our
Amended and Restated Bylaws is attached as Exhibit 3.2 to this Form 8-K and is
incorporated by reference into this Item 5.03.
As
described in our proxy statement for our 2008 Annual Meeting of Shareholders,
which was filed with the SEC on January 31, 2008, our 2009 Annual Meeting of
Shareholders is expected to be held on March 18, 2009. If a
shareholder wishes to make a proposal to be included in our proxy statement for
our 2009 Annual Meeting, our Vice President, Secretary and General Counsel must
receive the proposal no later than the close of business on December 11, 2008,
unless the date of our 2009 Annual Meeting is delayed by more than 30 calendar
days, and the proposal must satisfy the requirements of the proxy rules
promulgated by the SEC.
Under our
Amended and Restated Bylaws, if a shareholder wishes to nominate a candidate for
election to our Board of Directors at our 2009 Annual Meeting or to propose any
other business to be brought before our 2009 Annual Meeting, the shareholder
must give complete and timely written notice to our Vice President, Secretary
and General Counsel not later than December 11, 2008 nor earlier than November
11, 2008. If the date of our 2009 Annual Meeting is advanced by more
than 30 days or delayed by more than 60 days from the anniversary date
of our 2008 Annual Meeting, a shareholder’s notice must be delivered not earlier
than the 120th day nor later than the 90th day prior to our
rescheduled meeting, or the tenth day following the day on which we first make
public announcement of our rescheduled meeting. A shareholder’s
notice must contain specific information required by our Amended and Restated
Bylaws. Copies of our Amended and Restated Bylaws are available upon
request to our Assistant General Counsel and Assistant Secretary at 8111 Lyndale
Avenue South, Bloomington, Minnesota, 55420-1196, by telephone at 888/237-3054,
or by email to invest@toro.com, or may be obtained through the SEC’s website at
www.sec.gov. If
a shareholder’s nomination or proposal is not timely and properly made in
accordance with the procedures set forth in our Amended and Restated Bylaws, it
may not be brought before our 2009 Annual Meeting. If the nomination
or proposal is nonetheless brought before our 2009 Annual Meeting and the Chair
of the meeting does not exercise the power and duty to declare that such
non-complying nomination or proposal shall be disregarded, the persons named in
the proxy may use their discretionary voting with respect to the nomination or
proposal.
The summary information
set forth in this Form 8-K regarding our Restated Certificate of Incorporation
and our Amended and Restated Bylaws is qualified in its entirety by reference to
the full text of those documents, copies of which are filed as Exhibits 3.1 and
3.2 to this Form 8-K and are incorporated herein by
reference.
Section
9 — Financial Statements and Exhibits
Item
9.01 Financial Statements and
Exhibits.
(d) Exhibits.
|
Exhibit
No.
|
Description
|
|
3.1
|
The
Toro Company Restated Certificate of Incorporation
|
|
3.2
|
The
Toro Company Amended and Restated
Bylaws
|
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.
THE TORO
COMPANY
(Registrant)
|
Date: June 17, 2008
|
By:/s/ Timothy P. Dordell
|
|
Timothy
P. Dordell
|
|
|
Vice
President, Secretary and General
Counsel
|
EXHIBIT
INDEX
|
EXHIBIT NO.
|
DESCRIPTION
|
|
3.1
|
The
Toro Company Restated Certificate of Incorporation
|
|
3.2
|
The
Toro Company Amended and Restated
Bylaws
|
Exhibit
3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
THE
TORO COMPANY
The Toro Company
(hereinafter called the “corporation”), a corporation organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware, does hereby certify:
FIRST: The present
name of the corporation is The Toro Company, which is the name under which the
corporation was originally incorporated, and the date of filing the original
Certificate of Incorporation of the corporation with the Secretary of State of
the State of Delaware was November 7, 1983.
SECOND: This
Restated Certificate of Incorporation was duly adopted by and in accordance with
the provisions of Section 245 of the General Corporation Law of the State of
Delaware as set forth in Title 8 of the Delaware Code.
THIRD: This Restated
Certificate of Incorporation only restates and integrates the provisions of the
corporation’s Certificate of Incorporation as heretofore amended or
supplemented, and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
FOURTH: The text of
the Certificate of Incorporation of the corporation is hereby and restated to
read in its entirety as follows:
ARTICLE
I.
Name
The name of this
corporation shall be The Toro Company.
ARTICLE
II.
Registered
Office
The address of the
registered office of the corporation in the State of Delaware is 160 Greentree
Drive, Suite 101, City of Dover, County of Kent, and the name of its registered
agent at that address is National Registered Agents, Inc.
ARTICLE
III.
Purpose
The purpose for which the
corporation is formed is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE
IV.
Capital
Stock
The corporation shall be
authorized to issue three classes of shares of capital stock to be designated,
respectively, “Common Stock”, “Voting Preferred Stock” and “Non-Voting Preferred
Stock”. The total number of shares of capital stock which the corporation shall
have authority to issue is one hundred one million eight hundred fifty thousand
(101,850,000); the total number of shares of Common Stock shall be one
hundred
million (100,000,000) and
each such share shall have a par value of $1.00; the total number of shares of
Voting Preferred Stock shall be one million (1,000,000), and each such share
shall have a par value of $1.00; and the total number of shares of Non-Voting
Preferred Stock shall be eight hundred and fifty thousand (850,000), and each
such share shall have a par value of $1.00.
Except as herein provided
or as otherwise provided by law or by the resolution or resolutions adopted by
the Board designating the rights, powers and preferences of any series of
Preferred Stock, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share held; and Voting Preferred Stock
and Non-Voting Preferred Stock shall have only such voting rights, if any, as
fixed by the Board of Directors and as required by law as to matters affecting
such Voting Preferred Stock and Non-Voting Preferred Stock. Whenever this
Restated Certificate of Incorporation or the Bylaws of the corporation shall
require the affirmative vote of the holders of at least 80% of the voting power
of the then outstanding shares of the capital stock of the corporation entitled
to vote generally in the election of directors (such capital stock is
hereinafter referred to in this Restated Certificate of Incorporation as “Voting
Stock”), voting together as a single class, for the taking of corporate action:
(A) such affirmative vote shall be in addition to any other affirmative
vote required by law or by the resolution or resolutions designating the rights,
powers and preferences of any outstanding series of Preferred Stock; and
(B) each outstanding share of Common Stock shall be entitled to one vote
and each outstanding share of each series of Voting Preferred Stock shall be
entitled to the number of votes to which it is generally entitled, pursuant to
the resolution or resolutions designating the rights, powers and preferences of
such series of Preferred Stock, in the election of directors.
The Board of Directors is
authorized to establish more than one series or class of Common Stock, Voting
Preferred Stock and Non-Voting Preferred Stock and to fix the relative rights
and preferences of any such class or series, which rights and preferences need
not be equal.
There shall be no
cumulative voting of the shares of this corporation and the holders of shares of
any class of this corporation shall not have preemptive rights to subscribe for
any shares or securities convertible into shares of this
corporation.
ARTICLE
V.
Bylaws
In furtherance and not in
limitation of the powers conferred by law, the Board is expressly authorized to
make, repeal, alter, amend and rescind the Bylaws of the corporation by a
majority vote of the entire Board at any regular or special meeting of the
Board; provided however, that, notwithstanding anything contained in this
Restated Certificate of Incorporation or the Bylaws of the corporation to the
contrary, the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of Voting Stock, voting together as a
single class, shall be required to (1) alter, amend or repeal any provision
of the Bylaws which is substantially identical to or implements the last
sentence of Article IV, or Articles VI, VII or VIII, of this Restated
Certificate of Incorporation or (2) alter, amend or repeal any provision of
this proviso to Article V.
ARTICLE
VI.
Board
of Directors
Section 1.
Number, Election and Terms.
The business and affairs of the corporation shall be managed under the direction
of a Board of Directors which, subject to any right of the holders of any series
of Preferred Stock then outstanding to elect additional directors under
specified circumstances, shall consist of not less than eight nor more than
twelve persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to time
by the Board pursuant to a resolution adopted by a majority of the entire Board.
The directors shall be divided into three classes, designated
Classes
A, B and C, as nearly
equal in number as possible, with the term of office of each class to expire at
the third succeeding Annual Meeting of Stockholders after its election at an
Annual Meeting of Stockholders.
Section 2.
Newly Created Directorships and
Vacancies. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled only by a majority vote of the directors
then in office, and directors so chosen shall hold office for a term expiring at
the Annual Meeting of Stockholders at which the term of the class to which they
have been elected expires. No decrease in the number of directors constituting
the Board shall shorten the term of any incumbent director.
Section 3.
Removal. Subject to the rights
of the holders of any series of Preferred Stock then outstanding, any director,
or the entire Board, may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of the Voting Stock, voting together as a
single class.
Section 4.
Amendment, Repeal, etc.
Notwithstanding anything contained in this Restated Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of Voting Stock, voting together as
a single class, shall be required to alter, amend or repeal this
Article VI.
ARTICLE
VII.
Actions
by Stockholders
Any action required or
permitted to be taken by the stockholders of the corporation must be effected at
a duly called annual or special meeting of stockholders of the corporation and
may not be effected by any consent in writing by such stockholders. Special
meetings of stockholders of the corporation may be called only by the Board
pursuant to a resolution approved by a majority of the entire Board.
Notwithstanding anything contained in this Restated Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of Voting Stock, voting together as
a single class, shall be required to alter, amend or repeal this
Article VII.
ARTICLE
VIII.
Certain
Business Combinations
Section 1.
Vote Required for Certain Business
Combinations.
A.
Higher
Vote for Certain Business Combinations. Except as otherwise expressly
provided in Section 2 of this Article VIII,
|
|
(i)
|
|
any merger or consolidation of the corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined) or (b) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder;
or
|
|
|
(ii)
|
|
any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder
of any assets of the corporation or any Subsidiary having an aggregate
Fair Market Value (as hereinafter defined) of $1,000,000 or more;
or
|
|
|
(iii)
|
|
the issuance or
transfer by the corporation or any Subsidiary (in one transaction or a
series of transactions) of any securities of the corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $1,000,000 or more;
or
|
|
|
(iv)
|
|
the adoption of any
plan or proposal for the liquidation or dissolution of the corporation
proposed by or on behalf of an Interested Stockholder or any Affiliate of
any Interested Stockholder; or
|
|
|
(v)
|
|
any reclassification
of securities (including any reverse stock split), or recapitalization of
the corporation, or any merger or consolidation of the corporation with
any of its Subsidiaries or any other transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible securities of
the corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder or any Affiliate of any Interested
Stockholder;
|
shall require the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding shares of Voting Stock, voting together as a single class and any
necessary vote of the outstanding shares of Preferred Stock. Such affirmative
vote shall be required not withstanding the fact that no vote may be required or
that a lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B.
Definition
of “Business Combination.”
The term “Business Combination” as used in this Article VIII shall mean any
transaction which is referred to in any one or more of clauses (i) through
(v) of paragraph A of this Section 1.
Section 2.
When Higher Vote is Not
Required. The provisions of Section 1 of this Article VIII
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required by
law, this Restated Certificate of Incorporation and any resolution or
resolutions designating the rights, powers and preferences of any outstanding
series of Preferred Stock, if all of the conditions specified in either of the
following paragraphs (A) and (B) are met (it being intended that in
the case of a Business Combination not involving any cash or consideration other
than cash to be received by the holders of each class or series of outstanding
Voting Stock (other than Institutional Voting Stock, as hereinafter defined),
the provisions of such Section 1 shall not be applicable only if the
condition specified in the following paragraph (A) is met):
A.
Approval
by Continuing Directors. The Business Combination shall have been
approved by a majority of the Continuing Directors (as hereinafter
defined).
B.
Price and Procedure
Requirements. All of the following conditions shall have been
met.
|
|
(i)
|
|
The aggregate amount
of the cash and the Fair Market Value (as hereinafter defined) as of the
date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of Common Stock in
such Business Combination shall be at least equal to the highest of the
following:
|
|
|
(a)
|
|
(if applicable) the
highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers’ fees) paid by the Interested Stockholder for
any shares of Common Stock acquired by it (1) within the two-year
period immediately prior to the first public announcement of the proposal
of the Business Combination (the “Announcement Date”) or (2) in the
transaction in which it became an Interested Stockholder, whichever is
higher;
|
|
|
(b)
|
|
the Fair Market
Value per share of Common Stock on the Announcement Date or on the date on
which the Interested Stockholder became an Interested Stockholder (such
latter date is referred to in this Article VIII as the “Determination
Date”), whichever is higher; and
|
|
|
(c)
|
|
(if applicable) the
price per share equal to the Fair Market Value per share of Common Stock
on the Announcement Date or the Determination Date, whichever is higher,
multiplied by the ratio of (1) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers’ fees)
paid by the Interested Stockholder for any shares of Common Stock acquired
by it within the two-year period immediately prior to the Announcement
Date to (2) the Fair Market Value per share of Common Stock on the
first day in such two-year period upon which the Interested Stockholder
acquired any shares of Common Stock.
|
|
|
(ii)
|
|
The aggregate amount
of the cash and the Fair Market Value as of the date of the consummation
of the Business Combination of consideration other than cash to be
received per share by holders of shares of any other series of outstanding
Voting Stock (other than Institutional Voting Stock, as hereinafter
defined) shall be at least equal to the highest of the following (it being
intended that the requirements of this paragraph (B)(ii) shall be required
to be met with respect to every series of outstanding Voting Stock (other
than Institutional Voting Stock), whether or not the Interested
Stockholder has previously acquired any shares of a particular series of
Voting Stock):
|
|
|
(a)
|
|
(if applicable) the
highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers’ fees) paid by the Interested Stockholder for
any shares of such series of Voting Stock acquired by it (1) within
the two-year period immediately prior to the Announcement Date or
(2) in the transaction in which it became an Interested Stockholder,
whichever is higher;
|
|
|
(b)
|
|
(if applicable) the
highest preferential amount per share to which the holders of shares of
such series of Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
corporation;
|
|
|
(c)
|
|
the Fair Market
Value per share of such series of Voting Stock on the Announcement Date or
on the Determination Date, whichever is higher;
and
|
|
|
(d)
|
|
(if applicable) the
price per share equal to the Fair Market Value per share of such series of
Voting Stock on the Announcement Date or the Determination Date, whichever
is higher, multiplied by the ratio of (1) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers’ fees) paid by the
Interested
|
|
|
Stockholder
for any shares of such series of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement Date to (2) the Fair
Market Value per share of such series of Voting Stock on the first day in
such two-year period upon which the Interested Stockholder acquired any
shares of such series of Voting
Stock.
|
|
|
(iii)
|
|
The consideration to
be received by holders of a particular class (in the case of Common Stock)
or series (in the case of Preferred Stock) of the outstanding Voting Stock
shall be in cash or in the same form as the Interested Stockholder has
previously paid for shares of any class or series of Voting Stock. If the
Interested Stockholder has paid for shares of any class or series of
Voting Stock with varying forms of consideration, the form of
consideration for such class or series of Voting Stock shall be either
cash or the form used to acquire the largest number of shares of such
class or series of Voting Stock previously acquired by it.
|
|
|
(iv)
|
|
After such
Interested Stockholder has become an Interested Stockholder and prior to
the consummation of such Business Combination: (a) except as approved by a
majority of the Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) on the outstanding Preferred Stock;
(b) there shall have been (1) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of the
Continuing Directors, and (2) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of Common Stock, unless the failure so to increase such annual rate
is approved by a majority of the Continuing Directors; and (c) such
Interested Stockholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction which
results in such Interested Stockholder becoming an Interested
Stockholder.
|
|
|
(v)
|
|
After such
Interested Stockholder has become an Interested Stockholder, such
Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise.
|
|
|
(vi)
|
|
A proxy or
information statement describing the proposed Business Combination and
complying with the requirements of the Securities and Exchange Act of 1934
and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to public
stockholders of the corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
|
Section 3.
Certain Definitions. For the
purposes of this Article VIII:
A.
A “person” shall mean any individual, firm, corporation or other
entity.
B.
“Interested Stockholder” shall mean any person (other than the corporation or
any Subsidiary) who or which:
|
|
(i)
|
|
is the beneficial
owner, directly or indirectly, of more than 10% of the voting power of the
outstanding Voting Stock; or
|
|
|
(ii)
|
|
is an Affiliate of
the corporation and at any time within the two-year period immediately
prior to the date in question was the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the then outstanding
Voting Stock; or
|
|
|
(iii)
|
|
is an assignee of or
has otherwise succeeded to any shares of Voting Stock which were at any
time within the two-year period immediately prior to the date in question
beneficially owned by an Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
|
C.
A person shall be a “beneficial
owner” of any Voting Stock:
|
|
(i)
|
|
which such person or
any of its Affiliates or Associates (as hereinafter defined) beneficially
owns, directly or indirectly; or
|
|
|
(ii)
|
|
which such person or
any of its Affiliates or Associates has (a) the right to acquire
(whether such right is exercisable immediately or only after the passage
of time), pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or options,
or otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
|
|
|
(iii)
|
|
which are
beneficially owned, directly or indirectly, by any other person with which
such person or any of its Affiliates or Associates has any agreement, or
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting
Stock.
|
D.
For the purpose of determining whether a person is an Interested Stockholder
pursuant to paragraph (B) of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph (C) of this Section 3 but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
E.
“Affiliate” or “Associate” shall have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on October 3,
1983.
F.
“Subsidiary” means any corporation of which a majority of any class of equity
security is owned, directly or indirectly, by the corporation; provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in paragraph (B) of this Section 3, the term “Subsidiary” shall
mean only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the corporation.
G.
“Continuing Director” means any member of the Board who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Continuing Director who is unaffiliated with the Interested Stockholder and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
H.
“Fair Market Value” means: (i) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock
Exchange—Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which such
stock is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market value on the date in
question of a share of such stock as determined by the Board in good faith; and
(ii) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined by the Board in
good faith.
I.
“Institutional Voting Stock” shall mean any series of Voting Stock which was
issued to and continues to be held solely by one or more insurance companies,
pension funds, commercial banks, savings banks or similar financial institutions
or institutional investors.
J.
In the event of any Business Combination in which the corporation survives, the
phrase “consideration other than cash to be received” as used in Section 2
of this Article VIII shall include the shares of Common Stock or the shares
of any series of outstanding Voting Stock retained by the holders of such
shares.
Section 4.
Powers of the Board of Directors. A majority of the directors of the
corporation shall have the power and duty to determine for the purposes of this
Article VIII, on the basis of information known to them after reasonable
inquiry, (A) whether a person is an Interested Stockholder, (B) the
number of shares of Voting Stock beneficially owned by any person,
(C) whether a person is an Affiliate or Associate of another,
(D) whether a series of Voting Stock is Institutional Voting Stock and
(E) whether the assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or transfer of
securities by the corporation or any Subsidiary in any Business Combination has,
an aggregate Fair Market Value of $1,000,000 or more.
Section 5.
No Effect on Fiduciary Obligations of Interested Stockholders. Nothing
contained in this Article VIII shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
Section 6.
Amendment, Repeal, etc. Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80% of the voting power of the then outstanding shares
of the Voting Stock, voting together as a single class, shall be required to
alter, amend or repeal this Article VIII.
ARTICLE
IX.
Amendment
of Restated Certificate of Incorporation
The corporation reserves
the right to amend, alter, change or repeal any provision contained in this
Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred on stockholders herein are granted subject
to this reservation. Notwithstanding the foregoing, the provisions set forth in
the last sentence of Article IV, and in Articles VI, VII and VIII, may not
be altered, amended or repealed in any respect unless such alteration, amendment
or repeal is approved as specified in each thereof.
ARTICLE
X.
Indemnity
Section 1.
Elimination of Certain Liability of Directors.
A director of the
corporation shall not be personally liable to the corporation or its
stockholders for monetary
damages for breach of
fiduciary duty as a director, except for liability (A) for any breach of
the director’s duty of loyalty to the corporation or its stockholders,
(B) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (C) under Section 174 of the
Delaware General Corporation Law, or (D) for any transaction from which the
director derived an improper personal benefit.
Section 2.
Indemnification and Insurance.
A.
Right
to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason for the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding alleged action in
an official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in paragraph (B) hereof, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this Section 2 shall be a contract right,
which may, by action of the Board of Directors of the corporation and at its
option, be expressed in a separate written instrument, and shall include the
right to be paid by the corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section 2 or otherwise. The corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
B.
Right
of Claimant to Bring Suit. If a claim under paragraph (A) of this
Section 2 is not paid in full by the corporation within thirty days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition whether
the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors,
independent legal counsel
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
C.
Non-Exclusivity
of Rights. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Section 2 shall not be exclusive of any other right which any
persons may have or hereafter acquire under any statute, provision of the
Restated Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
D.
Insurance.
The corporation may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the
corporation has caused this Restated Certificate of Incorporation to be executed
this 17th
day of June, 2008, in its name and on its behalf by its Vice President,
Secretary and General Counsel pursuant to Section 103 of the General
Corporation Law of the State of Delaware.
/s/ Timothy P. Dordell
Timothy P. Dordell
Vice President, Secretary and General Counsel
Exhibit
3.2
AMENDED AND
RESTATED
BYLAWS
OF
THE
TORO COMPANY
(A Delaware
Corporation)
ARTICLE
I
Offices,
Corporate Seal, and Records
Section 1.1. The registered
office of the Corporation shall be established and maintained in the City
of Dover, in the County of Kent, in the State of Delaware, and the
Corporation may have other offices, either within or without the State of
Delaware, at such place or places as the Board of Directors may from time to
time determine. Unless otherwise determined by the Board of Directors, the
principal executive office of the Corporation shall be at 8111 Lyndale Avenue
South, in the City of Bloomington, County of Hennepin, State of
Minnesota.
Section 1.2. The Corporation may
have a corporate seal in such form as determined by the Board of Directors,
which may be altered at its pleasure, and the seal may be used by causing it or
a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
Section 1.3. The Corporation
shall at all times keep at its principal executive office, or at such other
place or places as the Board of Directors may determine, a share register giving
the names and addresses of the stockholders, the number and classes of shares
held by each, and the dates on which the certificates therefor were issued, or,
in the case of uncertificated shares, the date the electronic entry evidencing
the ownership of the shares was made in the Corporation’s records.
Section 1.4. The Corporation
shall at all times keep at its principal executive office the following records:
|
|
(a)
|
|
The
original or copies of records of all proceedings of stockholders and
directors, of its Bylaws and all amendments thereto, and of reports made
to stockholders or any of them within the next preceding three
years;
|
|
|
(b)
|
|
A
statement of names and usual business addresses of its directors and
principal officers;
|
|
|
(c)
|
|
Appropriate
financial statements.
|
Section 1.5. Subject to law and
any order of the Court of Chancery, any stockholder of record shall have the
right to inspect and make copies or extracts therefrom, upon proper written
demand under oath stating the purpose thereof, in person or by attorney or other
agent, at any reasonable time or times, for any proper purpose, and at the
principal executive offices of the corporation, the stock ledger, a list of
stockholders, and other books and records, required financial statements, and
the records of the proceedings of the stockholders and directors.
ARTICLE
II
Meeting
of Stockholders
Section 2.1. All meetings of the
stockholders shall be held at such place within or without the State of Delaware
as may be designated by the Board of Directors in the notice of the meeting.
Section 2.2. Annual meetings of
the stockholders, if any, shall be held on the day or date and at the time and
place as the Board of Directors may fix from time to time in its discretion, for
the election of directors and the transaction of such other business as may come
before the annual meeting; provided, however, that any previously scheduled
annual meeting of the stockholders may be postponed by resolution of the Board
of Directors upon public notice given prior to the date previously scheduled for
such annual meeting of the stockholders; and provided, further, that no business
with respect to which special notice is required by law shall be transacted at
an annual meeting unless such notice shall have been given.
Section 2.3. Special meetings of
the stockholders for any purpose or purposes may be called only by the Board of
Directors, pursuant to a resolution approved by a majority of the entire Board
of Directors; provided, however, that any previously scheduled special meeting
of the stockholders may be postponed by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such special
meeting of the stockholders. Business transacted at a special meeting shall be
confined to the purposes stated in the call and notice thereof.
Section 2.4. Notice of each
annual and special meeting of stockholders stating the date, time and place
thereof, and the general nature of the business to be considered thereat, shall
be given at least ten days and not more than sixty days before the date of the
meeting to each stockholder entitled to vote thereat. Such notice shall be
deemed delivered when deposited in the United States mail with postage thereon
prepaid, addressed to the stockholder at his address as it appears on the stock
transfer books of the Corporation.
Section 2.5. Each stockholder
who is entitled to vote pursuant to the terms of the Certificate of
Incorporation and these Bylaws, or who is entitled to vote pursuant to the laws
of the State of Delaware, shall be entitled to vote in person or by proxy, but
no proxy shall be voted after three years from its date unless such proxy
provides for a longer period. Any nominee for director in an uncontested
election as to whom a majority of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors are designated to be “withheld” from, or are voted “against”, that
director’s election shall tender his or her resignation for consideration by the
Nominating and Governance Committee. The Nominating and Governance Committee
shall evaluate the best interests of the Corporation and its stockholders and
shall recommend to the Board the action to be taken with respect to such
tendered resignation. All other questions shall be decided by the affirmative
vote of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on such question.
A complete
list of the stockholders entitled to vote at any meeting of stockholders at
which directors are to be elected, arranged in alphabetical order, with the
address of each, and the number of shares held by each, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
The Board of
Directors by resolution shall appoint one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including without limitation as officers, employees, agents or
representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate inspector
has been appointed to act or is able to act at a meeting of stockholders, the
Chair of the meeting shall appoint one or more inspectors to act at the
meeting.
Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by law.
The Chair of
the meeting shall fix and announce at the meeting the date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote at the meeting.
Section 2.6. Except as otherwise
required by law, by the Certificate of Incorporation or by these Bylaws, the
presence, in person or by proxy, of stockholders holding a majority of the
voting power of the outstanding stock of the Corporation shall constitute a
quorum at all meetings of the stockholders. The Chair of any annual or special
meeting of the stockholders or a majority in interest of the stockholders
entitled to vote thereat shall have the power to adjourn such meeting from time
to time, without notice other than announcement at the meeting, whether or not
there is such a quorum. No notice of the time and place of adjourned meetings
need be given except as required by law; provided, however, that if such
adjournment is for more than thirty days, or if after such adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at such
adjourned meeting. At any such adjourned meeting at which the requisite amount
of stock entitled to vote shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed; but only
those stockholders entitled to vote at the meeting as originally noticed shall
be entitled to vote at any adjournment or adjournments thereof unless the Board
of Directors shall have fixed a new record date for such adjournment or
adjournments pursuant to Section
2.7 of these Bylaws.
The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.7. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect to any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be less than ten nor more
than sixty days before the date of such meeting, nor more than sixty days prior
to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
or adjournments of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 2.8. (A) (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 only (a) pursuant to the Corporation’s notice
of meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who (i) was a stockholder of record (and, with
respect to any beneficial owner, if different, on whose behalf any nomination or
proposal is made, only if such beneficial owner was the beneficial owner of
shares of the Corporation) both at the time of giving of notice provided for in
this Bylaw and at the time of the annual meeting, (ii) is entitled to vote at
the annual meeting, and (iii) complied with the notice procedures set forth in
this Bylaw as to such nominations or other business. Except for proposals
properly made pursuant to Rule 14a-8 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and included in the Corporation’s notice of
meeting, the foregoing clause (c) shall be the exclusive means for a
stockholder to make nominations of persons for election to the Board of
Directors of the Corporation or to propose other business to be considered by
the stockholders at an annual meeting of
stockholders.
(2) Without
qualification, for any nominations of one or more persons for election to the
Board of Directors of the Corporation or any other business to be properly
brought before an annual meeting by a stockholder, in each case, pursuant to
clause (c) of paragraph (A) (1) of this Bylaw, the stockholder must have given
timely notice thereof in writing and in proper form to the Secretary of the
Corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder’s notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not less
than ninety days nor more than one hundred twenty days prior to the first
anniversary of the preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than thirty
days or delayed by more than sixty days from the first anniversary date of the
preceding year’s annual meeting, notice by the stockholder to be timely must be
so delivered not earlier than the one hundred twentieth day prior to the date of
such rescheduled annual meeting and not later than the close of business on the
later of (x) the ninetieth day prior to the date of such rescheduled annual
meeting or (y) the tenth day following the day on which public announcement of
the date of such rescheduled annual meeting is first made. In no event
shall any adjournment or postponement of an annual meeting or the announcement
thereof commence a new time period for the giving of a stockholder’s notice as
described above. For purposes of this Bylaw, the stockholder providing the
notice of a proposed nomination or other business proposed to be brought before
an annual meeting, the beneficial owner, if different, on whose behalf the
proposed nomination or other business proposed to be brought before an annual
meeting is made, and any affiliate or associate of such beneficial owner (as
such terms are defined in Rule 12b-2 promulgated under the Exchange Act), are
referred to as “Proposing Persons”. To be in proper form, a stockholder’s
notice (whether given pursuant to this paragraph (A)(2) or paragraph (B) of
these Bylaws) shall set forth, as of the date of such
notice:
(a) As
to each person, if any, whom the stockholder proposes to nominate for election
or reelection as a director (i) all information relating to such proposed
nominee that is required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors in a contested election pursuant to Section 14 under Exchange Act and
the regulations promulgated thereunder (including such proposed nominee’s
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected), and (ii) a reasonably detailed 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 any Proposing Person, 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 a Proposing Person, or any person acting in concert therewith, were the
“registrant” for purposes of such rule and the proposed nominee were a director
or executive officer of such registrant;
(b) As
to any business other than nominations for election of one or more directors
that the stockholder proposes to bring before the meeting, (i) a reasonably
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 each Proposing Person, and (ii) a reasonably detailed
description of all agreements, arrangements and understandings between or among
any Proposing Person and/or any other person or persons (including their names)
in connection with the proposal of such business by such stockholder;
and
(c) As
to each Proposing Person, (i) the name and address of the stockholder providing
the notice, as they appear on the Corporation’s books, and of any other
Proposing Persons,
(ii) the
class and number of shares of the Corporation that are, directly or indirectly,
owned of record or beneficially by such Proposing Person, (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 shares of the Corporation or with a value derived in whole
or in part from the value of any shares of the Corporation, whether or not such
instrument or right shall be subject to settlement in the underlying capital
stock (or any class or series thereof) of the Corporation or otherwise (a
“Derivative Instrument”), directly or indirectly, owned of record or
beneficially by such Proposing Person and any
other direct or indirect opportunity 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 Proposing Person has a right to vote any shares of the Corporation,
(v) any short interest in any security of the Corporation (for purposes of this
Bylaw 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
Proposing Person 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 Proposing Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, and (viii) any
performance related fees (other than an asset based fee) that such Proposing
Person is entitled to based on any increase or decrease in the value of shares
of the Corporation or Derivative Instruments, if any.
A
stockholder providing notice of a proposed nomination for election to the Board
of Directors of the Corporation or other business proposed to be brought before
a meeting (whether given pursuant to this paragraph (A)(2) or paragraph (B) of
these Bylaws) shall further update and supplement such notice, if necessary, so
that the information provided or required to be provided in such notice under
this paragraph (A)(2) shall be true and correct as of the record date for the
meeting and as of the date that is ten business days prior to the meeting or any
adjournment or postponement thereof, and such update and supplement shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than five business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date),
and not later than eight business days prior to the date for the meeting or any
adjournment or postponement thereof (in the case of the update and supplement
required to be made as of ten business days prior to the meeting or any
adjournment or postponement thereof). The Corporation may also require any
proposed nominee for election to the Board of Directors of the Corporation to
furnish such other information as may be reasonably required for the Corporation
to determine the eligibility of such proposed nominee to serve as an independent
director of the Corporation or that could be material to a reasonable
stockholder’s understanding of the independence, or lack thereof, of such
nominee.
(3)
Notwithstanding anything in paragraph (A)(2) of this Bylaw, 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 made by the Corporation at least one hundred days prior to
the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice required by this Bylaw 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 tenth day following the
day on which such public announcement is first made by the Corporation.
(B)
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting (a) by or at the
direction of the Board of Directors or (b) if and only if the Board of Directors
has determined that directors shall be elected at such special meeting, by any
stockholder of the Corporation who is a stockholder of record (and, with respect
to any beneficial owner, if different, on whose behalf any nomination or
proposal is made, only if such beneficial owner was the beneficial owner of
shares of the Corporation) both at the time of giving of notice provided for in
this Bylaw and at the time of the special meeting, who shall be entitled to vote
at the special meeting and who complies with the notice procedures set forth in
this Bylaw under paragraph (A)(2) with respect to nominations for election of
directors at an annual meeting of stockholders. Stockholders shall not be
permitted to propose other business to be considered by the stockholders at a
special meeting. Without qualification, 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 stockholder otherwise permitted in this
Bylaw to nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation’s notice of meeting, may nominate
such person(s) for election to such position(s) if the stockholder’s notice
required by paragraph (A)(2) shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the one hundred
twentieth day prior to such special meeting and not later than the close of
business on the later of (x) the ninetieth day prior to such special meeting or
(y) the tenth 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 special meeting. In no event shall any
adjournment or postponement of a special meeting or the announcement thereof
commence a new time period for the giving of a stockholder’s notice as described
above.
(C) (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Bylaw shall be eligible to serve as directors and only such other business
as shall have been brought before the meeting in accordance with the procedures
set forth in this Bylaw shall be conducted at a meeting of stockholders.
Except as otherwise provided by law, the Certificate of Incorporation or these
Bylaws, , the Chair of the meeting shall have the power and duty to determine
whether a nomination or any other business proposed to be brought before the
meeting was made or proposed in compliance with this Bylaw and, if such
nomination or other business is not in compliance with this Bylaw, to declare
that such non-complying nomination or proposal shall be
disregarded.
(2)
Notwithstanding the foregoing provisions of this Bylaw, 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 Bylaw.
This Bylaw is expressly intended to apply to any business proposed to be
considered by the stockholders at a meeting, regardless of whether or not such
proposal is made pursuant to Rule 14a-8 under the Exchange Act. In the
case of proposals made pursuant to Rule 14a-8 under the Exchange Act, this Bylaw
shall not be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
(3)
For purposes of this Bylaw, “public announcement” shall mean disclosure in
a press release reported by a national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
ARTICLE
III
Directors
Section 3.1. The business and
affairs of the Corporation shall be managed under the direction of
a
Board of
Directors which, subject to any right of the holders of any series of Preferred
Stock then outstanding to elect additional directors under specified
circumstances, shall consist of not less than eight (8) nor more than twelve
(12) persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to time
by the Board pursuant to a resolution adopted by a majority of its members. The
directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of Class A to expire at the 1984 Annual
Meeting of Stockholders, the term of office of Class B to expire at the 1985
Annual Meeting of Stockholders and the term of office of Class C to expire at
the 1986 Annual Meeting of Stockholders. At each annual meeting of stockholders
following such initial classification and election, directors elected to succeed
those directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election.
Section 3.2. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
only by majority vote of the directors then in office, and directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of the Class to which they have been elected expires. No decrease
in the number of directors constituting the Board shall shorten the term of any
incumbent director. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any director, or the entire Board, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80% of the voting power of the then outstanding
Common Stock of the Corporation.
Section 3.3. Regular meetings of
the Board shall be held at bi-monthly intervals during each fiscal year, or on
such alternate intervals or dates as the Board may fix from time to time in its
discretion, and at such time and place as the Chairman of the Board of Directors
or, in his absence, the President shall determine, preferably at the principal
executive office of the Corporation during the third week of the month. At least
three (3) days’ notice thereof shall be given by the Secretary to each director,
either personally or by telephone, mail, electronic mail or facsimile
transmission.
Section 3.4. Special meetings of
the Board may be called by the Chief Executive Officer or by any two directors,
and not less than twenty-four (24) hours’ notice thereof shall be given by the
Secretary to any director, either personally or by telephone, mail, telegram or
facsimile transmission.
Section 3.5. Any action taken by
the Board or any committee thereof at any meeting where all members are present
shall be valid whether or not notice of such meeting was in fact given, except
as provided by law. Any action which might be taken at a meeting of the Board,
or at a meeting of any committee thereof as the case may be, may be taken
without meeting as provided by law.
Section 3.6. At all meetings of
the Board a majority of the directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, but if less than a quorum
are present, those present may adjourn the meeting from time to time until a
quorum shall be present.
Section 3.7. The Board may
unanimously elect from among the directors an Executive Committee, a
Compensation and Human Resources Committee, an Audit Committee, and a Nominating
and Governance Committee, and such other committees as the Board may from time
to time determine, to serve at the pleasure of the Board. The members of the
Board of Directors and of said Committees shall have the role of monitoring the
conduct of the business and affairs of the corporation on behalf of all of the
constituencies of
the
Corporation, including in particular, those who invest in the stock of the
Corporation, in an environment of loyal but independent oversight. Each
Committee shall maintain independent minutes of action, and with the exception
of the Audit Committee, and resolutions of the Compensation and Human Resources
Committee relating to matters governed by or within the scope of Section 16 of
the Securities and Exchange Act of 1934 or Section 162(m) of the Internal
Revenue Code of 1986, or its successor provision, such minutes shall be subject
to approval by the Board.
Section 3.8. The Executive
Committee shall consist of a minimum of three directors of the Corporation,
including the Chairman of the Board of Directors, and one of the members shall
be designated by the Board of Directors as its Chair. The Chair of the Executive
Committee shall preside at all meetings of the Executive Committee and shall
perform such other duties as may be prescribed by the Board of Directors. The
underlying purpose of the Executive Committee is to exercise all of the powers
and authority of the Board during intervals between meetings of the Board. The
Committee shall have discretionary authority to undertake additional activities
within the scope of its primary functions.
Section 3.9. The Audit Committee
shall consist of a minimum of three directors of the Corporation, each of whom
shall meet the independence and other requirements established by law, the rules
and regulations of the Securities and Exchange Commission and the New York Stock
Exchange listing standards, and one of the members shall be designated by the
Board of Directors as its Chair. The Chair of the Audit Committee shall preside
at all meetings of the Audit Committee and shall perform such other duties as
may be prescribed by the Board of Directors. The purpose of the Audit Committee
is to assist the Board of Directors in fulfilling the Board’s responsibility to
oversee the Corporation’s financial reports and accounting and reporting
practices and to perform its duties and responsibilities as outlined in the
Audit Committee Charter. The manager of the Corporation’s internal auditing
function, when operative, shall have an indirect reporting relationship to the
Audit Committee, and shall perform such duties as may be prescribed by the Board
of Directors or by the Audit Committee. The Committee shall have discretionary
authority to undertake additional activities within the scope of its primary
functions.
Section 3.10. The Compensation
and Human Resources Committee shall consist of a minimum of three directors of
the Corporation, each of whom shall meet the independence and other requirements
established by law, the rules and regulations of the Securities and Exchange
Commission and the New York Stock Exchange listing standards, and one of the
members shall be designated by the Board of Directors as its Chair. The Chair of
the Compensation and Human Resources Committee shall preside at all meetings of
the Compensation and Human Resources Committee and shall perform such other
duties as may be prescribed by the Board of Directors. The purposes of the
Compensation and Human Resources Committee include: to administer all employee
benefit plans heretofore or hereafter established including the granting of
stock options and incentive awards authorized under employee benefit plans
governed by or within the scope of Section 16 of the Securities and Exchange Act
of 1934 or Section 162(m) of the Internal Revenue Code of 1986, or its successor
provision; to study and analyze specific and general matters of management
compensation; to periodically review management compensation policies and
practices; to make recommendations to the Board respecting incentive
compensation awards; and to consider and approve officer salary adjustments of
elected officers of the Corporation at the level of Vice President and above.
Section 3.11. The Nominating and
Governance Committee shall consist of a minimum of three directors of the
Corporation, each of whom shall meet the independence and other requirements
established by law, the rules and regulations of the Securities and Exchange
Commission and the New York Stock Exchange listing standards, and one of the
members shall be designated by the Board of Directors as its Chair. The Chair of
the Nominating and Governance Committee shall preside at all meetings of
the
Nominating
and Governance Committee and shall perform such other duties as may be
prescribed by the Board of Directors. The primary functions of the Nominating
and Governance Committee are to review with the Chief Executive Officer of the
Corporation an appropriate size and makeup for the Board of Directors, including
individuals having such background and business experience as are consistent
with and compatible to the long-range interests and future direction of the
Corporation; to consider the qualifications of persons identified as prospective
Directors to either fill vacancies on the Board or enlarge its membership; to
conduct research to identify and recommend nomination of suitable candidates who
are willing to serve as members of the Board of Directors and who will make a
substantial contribution to the Corporation based upon a careful review of their
experience, background, interests, ability and availability to meet time
commitments for board and committee responsibilities; and to determine whether
any prospective or seated member of the Board has any economic or familial
relationship with the Corporation which may negate his/her suitability for such
service and to name a lead director to oversee the non-management executive
sessions of the Board and to serve as an ongoing liaison between the directors
and the employees. The Committee shall also monitor current members of the Board
in light of the same guidelines used to select candidates, shall direct the
activities of the Board and management in matters of corporate governance, and
shall have general discretionary authority to undertake additional activities
within the scope of its primary functions.
Section 3.12. Meetings of each
committee shall be held from time to time as the Chair of such committee, the
Chairman of the Board of Directors, or any two members of such committee shall
determine, preferably at the principal executive office of the Corporation. All
members of each committee shall be given written notice of any meeting by the
Secretary, such notice to be mailed to each member at least three (3) days prior
to the date thereof; provided, however, such written notice shall not be
required as to any member who shall receive notice in person at least
twenty-four (24) hours prior to the time of the meeting. Any member may in
writing, before or after any meeting, waive notice thereof, and any member by
his attendance at, and participation in, the action taken at any meeting shall
be deemed to have waived notice thereof. A majority of the members of a
committee shall constitute a quorum. Any action which might be taken at a
meeting of a committee may be taken without meeting if evidenced by a resolution
signed by all members. The Chair of each Board committee shall preside at all
meetings of such committee and shall perform such other duties as may be
prescribed by the Board of Directors or the Chairman thereof.
Section 3.13. All action taken
by the Board committees shall be reported to the Board of Directors at its
meeting next succeeding such action and shall be subject to revision by the
Board of Directors provided that no acts or rights of third parties shall be
prejudiced thereby. All such action shall also be recorded in the minute books
of the Corporation in the same manner in which action taken by the Board of
Directors is recorded. The affirmative vote of the majority of all members of
each committee shall be necessary to its adoption of any resolution.
ARTICLE
IV
Officers
Section 4.1. The officers of
this Corporation shall be elected by the Board from time to time as it deems
appropriate, and shall include a Chairman of the Board of Directors, who shall
serve as Chief Executive Officer, to be elected by the Board of Directors from
among its members, a president, and one or more vice presidents one of whom
shall perform the duties of the Chief Financial Officer, a secretary, a
treasurer, and such other officers, including one or more group vice presidents
or one or more executive vice presidents, and agents as may from time to time be
elected by the Board of Directors. Any two offices except those of the President
and Vice President may be held by the same person. All officers shall hold
office at the
pleasure of
the Board of Directors and be subject to dismissal by it, with or without
cause.
Section 4.2. The salary and
other compensation of the Chairman of the Board, the President and all elected
Vice Presidents shall be fixed by the Board of Directors. If any vacancy shall
occur among the elected officers, it shall be filled by the
Board.
Section 4.3. The Chairman of the
Board of Directors, or in his absence the Chair of the Compensation and Human
Resources Committee, shall preside at all meetings of the Board of Directors.
The Chairman of the Board has authority to appoint certain officers of the
Corporation, including vice presidents and certain assistant officers whose
responsibilities do not warrant election by the Board of Directors, and shall
also perform such other duties as may be prescribed by the Board of Directors.
Section 4.4. The President shall
be Chief Operating Officer of the Corporation and, as such, shall carry out the
plans for the Corporation as approved by the Chairman of the Board and the Board
of Directors. In the absence of the Chairman of the Board of Directors, he shall
preside at all meetings of the stockholders and otherwise perform the Chief
Executive Officer’s duties as prescribed by the Board of Directors.
Section 4.5. Each Vice President
shall perform such duties as may be prescribed by the Board of Directors. The
Vice President of Finance shall be the Chief Financial Officer. In the absence
or disability of the Chairman of the Board, the President shall succeed to his
powers and duties, and in the absence of the President, the Chief Financial
Officer shall first succeed to his powers and duties, then the Executive or
Group Vice Presidents in order of seniority and in the event all are unable to
serve for any reason, the Vice Presidents shall succeed to their power and
duties in the order in which elected.
Section 4.6. The Secretary shall
attend all meetings of the Board of Directors, Executive Committee, and of the
stockholders, and record all votes and keep minutes of all proceedings. He shall
give, or cause to be given, required notices of meetings of the Board of
Directors, Executive Committee and of the stockholders. He shall keep in safe
custody the seal of the Corporation and, when authorized by the Board, affix the
same to any instrument requiring it, and shall perform such other duties as may
be prescribed by the Board of Directors.
Section 4.7. The Treasurer shall
maintain necessary relationships with banks and other financial institutions and
provide for adequate lines of credit; shall plan for and maintain adequate funds
in appropriate working and depository accounts to meeting outstanding and
planned commitments; and shall be responsible for safe custody and control of
all funds and securities of the Corporation. He shall establish policies and
procedures in relation to, and supervise management of, the extension of credit,
and the collection of receivables. He shall maintain appropriate bond and
dividend records, provide for proper signature or endorsement on all financial
documents of the Corporation, and shall perform such other duties as may be
prescribed by the President.
Section 4.8. The assistant to
any officer shall, in the absence or disability of that officer, perform his
duties and shall perform such other duties as may be prescribed by the Board of
Directors.