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BBBY » Topics » Majority Voting for the Election of Directors in Non-Contested Elections and Director Resignation Policy.This excerpt taken from the BBBY 8-K filed Apr 9, 2009. Majority Voting for the Election of Directors in Non-Contested Elections and Director Resignation Policy.
The Board adopted a resolution approving proposed amendments to the Company’s Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Amended By-laws (the “By-laws”) that would specify that director nominees in a non-contested election would be elected by a majority vote. Under Article SEVENTH of the Certificate of Incorporation, as amended by the certificate of amendment of the Certificate of Incorporation (the “Certificate of Amendment”) and Article III, Section 13 of the By-laws, each vote would be specifically counted “for” or “against” the director’s election. An affirmative majority of the total number of votes cast “for” a director nominee would be required for election. Shareholders would also be entitled to abstain with respect to the election of a director. In accordance with New York law, abstentions would have no effect in determining whether the required affirmative majority vote has been obtained. Director nominees in contested elections would continue to be elected by plurality vote. An election is considered contested if there are more nominees for election than positions on the Board to be filled.
The Board also approved and adopted as an amendment to the By-laws in Article III, Section 14 thereof a director resignation policy consistent with the majority vote standard, so that an incumbent director who did not receive the requisite affirmative majority of the votes cast for his or her re-election would be required to
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immediately tender his or her resignation to the Board. The Board then will decide, through a process managed by the Nominating and Corporate Governance Committee and excluding the nominee in question, whether to accept the resignation. In making its decision, the Board may consider any factors or information that it considers appropriate or relevant. The Board’s explanation of its decision would be promptly disclosed in a Current Report on Form 8-K filed with the Securities and Exchange Commission. The decision of the Board and such disclosure shall be completed within 90 days from the date of the certification of the election results.
The proposed amendment to the Certificate of Incorporation will be submitted to the Company’s shareholders for approval at the 2009 Annual Meeting, with the Board’s recommendation that it be approved.
If approved by the Company’s shareholders at the 2009 Annual Meeting, the amendment to the Certificate of Incorporation will become effective upon the filing with the New York Department of State of the Certificate of Amendment. The Company would make such a filing promptly after the 2009 Annual Meeting. The corresponding amendments to the By-laws will be effective as of the date of the filing with the New York Department of State of the Certificate of Amendment.
The foregoing description of the Certificate of Amendment and By-laws is qualified in its entirety by reference to the Certificate of Amendment attached hereto as Exhibit 3.1 and an annotated version of the By-laws attached hereto as Exhibit 3.2, each of which is incorporated herein by reference.
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