Pottery Barn 2010 Annual Report Download - page 122

Provision W-S California W-S Delaware
Change in Number of
Directors
Under the California General
Corporation Law, although a change in
the number of directors must generally
be approved by shareholders, the board
of directors may fix the exact number
of directors within a stated range set
forth in either the articles of
incorporation or bylaws, if that stated
range has been approved by the
shareholders. Any change outside of
the established range or a change in the
established range must be approved by
the shareholders.
The California Bylaws provide that the
number of directors shall not be less
than seven nor more than thirteen.
Under the DGCL, the number of
directors shall be fixed by or in the
manner provided in the bylaws, unless
the certificate of incorporation fixes
the number of directors.
Consistent with our California Bylaws,
the Delaware Bylaws provide that the
number of directors shall not be less
than seven nor more than thirteen.
Changes outside of these limits may be
made only by amendment to the
certificate of incorporation, which
must be approved by at least a majority
of the outstanding voting stock of W-S
Delaware.
Classified Board The California Articles do not provide
for a classified board.
The Delaware Certificate does not
provide for a classified board.
Filling Vacancies on the
Board
Under California law, any vacancy on
the board of directors other than one
created by removal of a director may
be filled by the board. If the number of
directors is less than a quorum, a
vacancy may be filled by the
unanimous written consent of the
directors then in office, by the
affirmative vote of a majority of the
directors at a meeting held pursuant to
notice or waivers of notice, or by a
sole remaining director. A vacancy
created by removal of a director may
be filled by the board only if
authorized by the articles of
incorporation or a bylaw approved by
the corporation’s shareholders.
The California Bylaws provide that all
vacancies on the Board may be filled
by a majority of the remaining
directors or, if the number of directors
then in office is less than a quorum, by
the unanimous written consent of the
directors then in office, the affirmative
vote of a majority of the directors then
in office or by a sole remaining
director, except that a vacancy created
by the removal of a director by the
vote or written consent of the
shareholders or by court order may be
filled only by the vote or consent of
the holders of any percentage
exceeding fifty percent of the
outstanding shares of the company
entitled to vote at a duly held meeting
at which a quorum is present.
Under Delaware law, vacancies and
newly created directorships may be
filled by a majority of the directors
then in office (even though less than a
quorum) or by a sole remaining
director, unless otherwise provided in
the certificate of incorporation or
bylaws.
The Delaware Certificate and the
Delaware Bylaws follow Delaware law
and provide that any vacancies and any
newly created directorships resulting
from any increase in the authorized
number of directors may be filled by a
majority of the directors then in office
(even though less than a quorum) or by
a sole remaining director.
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