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BBBY » Topics » AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION ADDING A NEW ARTICLE ELIMINATING STATUTORY SUPERMAJORITY VOTING REQUIREMENTS (PROPOSAL 4B)This excerpt taken from the BBBY DEF 14A filed Jun 1, 2009. AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION ADDING A NEW ARTICLE ELIMINATING STATUTORY SUPERMAJORITY VOTING REQUIREMENTS (PROPOSAL 4B)
In addition to the express supermajority voting provisions in the Company’s Restated Certificate of Incorporation discussed above, the Business Corporation Law specifies that a vote of two-thirds of the outstanding shares entitled to vote thereon is required for certain matters unless a company’s certificate of incorporation specifically provides that such matters shall be approved by the vote of a majority of the outstanding shares entitled to vote thereon. The Board notes that the statutory provisions that require a supermajority vote are the result of long-standing Business Corporation Law voting standards and that the statutory voting requirements were amended after the Company was formed to permit a majority vote. Consistent with the elimination of the supermajority voting provisions discussed above, the Board of Directors recommends that a new article be added to the Company’s Restated Certificate of Incorporation to eliminate these statutory supermajority voting requirements. If the proposed amendment is approved, a new Article EIGHTH will be added to the Company’s Restated Certificate of Incorporation that reads as follows:
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“The affirmative vote of the shareholders entitled to cast a majority of the votes entitled to be cast shall be required to (i) adopt a plan of merger or consolidation in accordance with Section 903 of the Business Corporation Law, (ii) approve the sale, lease or exchange of all or substantially all of the assets of the Corporation in accordance with Section 909 of the Business Corporation Law, (iii) approve a share exchange in accordance with Section 913 of the Business Corporation Law, (iv) dissolve in accordance with Section 1001 of the Business Corporation Law, or (v) act under any successor provision to the foregoing provisions of the Business Corporation Law.”
To approve this amendment to the Company’s Restated Certificate of Incorporation, two-thirds of the outstanding shares of the Company must be voted “FOR” the proposed amendment. If approved, this amendment will become effective upon the filing with the New York Department of State of a certificate of amendment of the Company’s Restated Certificate of Incorporation. The Company would make such a filing promptly after the annual meeting. The amendment to the Company’s Restated Certificate of Incorporation will be disclosed in a Current Report on Form 8-K filed with the SEC.
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