Bed, Bath and Beyond 2008 Annual Report Download - page 50

Download and view the complete annual report

Please find page 50 of the 2008 Bed, Bath and Beyond annual report below. You can navigate through the pages in the report by either clicking on the pages listed below, or by using the keyword search tool below to find specific information within the annual report.

Page out of 80

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36
  • 37
  • 38
  • 39
  • 40
  • 41
  • 42
  • 43
  • 44
  • 45
  • 46
  • 47
  • 48
  • 49
  • 50
  • 51
  • 52
  • 53
  • 54
  • 55
  • 56
  • 57
  • 58
  • 59
  • 60
  • 61
  • 62
  • 63
  • 64
  • 65
  • 66
  • 67
  • 68
  • 69
  • 70
  • 71
  • 72
  • 73
  • 74
  • 75
  • 76
  • 77
  • 78
  • 79
  • 80

BED BATH & BEYOND PROXY STATEMENT
48
AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION ELIMINATING SUPERMAJORITY VOTING PROVISIONS
(PROPOSAL 4A)
The Board of Directors has evaluated the need for shareholder supermajority voting provisions in the Company’s governing
documents. Article SEVENTH of the Company’s Restated Certificate of Incorporation currently provides that shareholders may
amend certain provisions of the Company’s Restated Certificate of Incorporation and certain By-laws related to the Board of
Directors and meetings of shareholders by the vote of 80% of voting power of all the then outstanding shares of voting stock of
the Company entitled to vote at an election of directors, voting together as a single class. The Company’s By-laws contain a paral-
lel supermajority voting requirement with respect to certain amendments of the By-laws in Article VII, Section 4 thereof. The
Board reviewed these provisions in connection with its review of the voting standard for director elections, and concluded that it
is consistent with current shareholder expectations to adopt a majority standard for stockholder votes. Therefore, the Board rec-
ommends that Article SEVENTH of the Company’s Restated Certificate of Incorporation be amended to eliminate these superma-
jority voting provisions.
Conditioned upon and effective after shareholder approval of this proposal and the filing of a certificate of amendment of the
Company’s Restated Certificate of Incorporation with the New York Department of State, the Board has approved an amendment
to the Company’s By-laws eliminating the supermajority vote requirement contained in Article VII, Section 4 thereof, so that all
amendments to the Company’s By-laws, including those related to the Board of Directors and meetings of shareholders, would
only require the vote of the holders of a majority of the outstanding shares entitled to vote thereon, rather than the vote of the
holders of 80% of such shares.
To approve this amendment to the Company’s Restated Certificate of Incorporation, 80% 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 amendments to the Company’s By-laws and
Restated Certificate of Incorporation will be disclosed in a Current Report on Form 8-K filed with the SEC.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS VOTE FOR THE APPROVAL OF AN AMENDMENT
TO THE RESTATED CERTIFICATE OF INCORPORATION ELIMINATING SUPERMAJORITY VOTING PROVISIONS.
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’sRestated 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
asupermajority 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’sRestated Certificate of Incorporation that reads as follows:
“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.”
Toapprove 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.