FORM 8-K
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): December 9, 2008
Hanesbrands Inc.
(Exact name of registrant as specified in its charter)
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Maryland
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001-32891
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20-3552316 |
(State or other jurisdiction
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(Commission File Number)
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(IRS Employer Identification |
of incorporation)
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No.) |
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1000 East Hanes Mill Road
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27105 |
Winston-Salem, NC
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(Zip Code) |
(Address of principal executive |
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offices) |
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Registrants telephone number, including area code: (336) 519-4400
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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TABLE OF CONTENTS
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Item 5.03. |
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
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Item 9.01. |
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Financial Statements and Exhibits. |
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Item 5.03 |
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
On December 9, 2008, the Board of Directors of Hanesbrands Inc., a Maryland corporation
(Hanesbrands), adopted amended and restated bylaws (the Amended and Restated Bylaws). The
material changes to Hanesbrands bylaws (the Bylaws) resulting from the adoption of the Amended
and Restated Bylaws are described below. The description below is qualified in its entirety by
reference to the complete Amended and Restated Bylaws, which are included with this Current Report
on Form 8-K as Exhibit 3.1 and incorporated herein by reference.
Expanded Information under Advance Notice Provision. The Bylaws contained advance notice
provisions requiring any stockholder of Hanesbrands proposing a director nominee or any other
matter for consideration at a meeting of the stockholders to provide advance notice to the company,
along with specified information about the stockholder and its proposal. The Amended and Restated
Bylaws retain that advance notice provision but expand the information requirement to include more
specific detail regarding ownership of securities and any substantial interest in Hanesbrands,
hedging activities and the investment strategy of such stockholder, the proposed nominee and
affiliated persons. The amendments to the advance notice provisions do not affect a stockholders
right to submit proposals for inclusion in Hanesbrands proxy statement under Rule 14a-8 under the
Securities Exchange Act of 1934.
Stockholders Meetings. The Amended and Restated Bylaws also include other changes related to
stockholders meetings, including:
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providing for householding of notices of stockholders meetings; |
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clarifying that an irregularity in providing notice of a stockholders meeting
will not affect the validity of the meeting; |
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providing that Hanesbrands may postpone or cancel a stockholders meeting by making a
public announcement; |
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expanding the powers of the chairman over the conduct of the meeting to include
complying with any state or local laws and regulations concerning safety and security; |
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clarifying the responsibilities of the inspectors of elections; |
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clarifying certain procedures with respect to stockholder-requested meetings; and |
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removing a reference in the Bylaws to the specific month during which the annual
meeting of stockholders is to be held to provide greater flexibility in conformance with a
recent amendment to Maryland law. |
Other Miscellaneous Changes. The Amended and Restated Bylaws also include a number of other
miscellaneous changes. One clarifies the procedures for the resignation of a director. Another
series of revisions removes certain outdated or unnecessary provisions, including provisions
concerning the closing of the transfer books, liability for losses which may occur by reason of the
failure of a financial institution and the giving of bonds by directors, the treasurer and
assistant treasurers. Provisions regarding reliance by directors and officers on information
prepared or presented by others have been revised to track Maryland law more closely. The Amended
and Restated Bylaws also clarify the power of the Board of Directors and the stockholders to ratify
prior actions or inactions by Hanesbrands and add a new section providing for procedural
flexibility in the event of an emergency.
In addition to the amendments described above, the Amended and Restated Bylaws include certain
changes to (1) clarify language, (2) conform to current Maryland law and (3) make various other
technical corrections and non-substantive changes.
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Item 9.01. |
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Financial Statements and Exhibits |
(d) Exhibits
Exhibit 3.1 Amended and Restated Bylaws of Hanesbrands Inc.
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.
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December 15, 2008 |
HANESBRANDS INC.
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By: |
/s/ Joia M. Johnson
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Joia M. Johnson |
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Executive Vice President, General
Counsel and Corporate Secretary |
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Exhibits
3.1 |
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Amended and Restated Bylaws of Hanesbrands Inc. |
EX-3.1
Exhibit 3.1
HANESBRANDS INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the Corporation in the State of
Maryland shall be located at such place as the Board of Directors of the Corporation (the Board of
Directors) may designate.
Section 2. Additional Offices. The Corporation may have additional offices, including a
principal executive office, at such places as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. All meetings of stockholders shall be held at the principal executive
office of the Corporation or at such other place as shall be set by the Board of Directors and
stated in the notice of the meeting.
Section 2. Annual Meeting. An annual meeting of the stockholders for the election of
directors and the transaction of any business within the powers of the Corporation shall be held on
the date and at the time set by the Board of Directors.
Section 3. Special Meetings.
(a) General. The chairman of the board, president, chief executive officer or Board
of Directors may call a special meeting of the stockholders. Subject to subsection (b) of this
Section 3, a special meeting of stockholders shall also be called by the secretary of the
Corporation to act on any matter that may properly be considered at a meeting of stockholders upon
the written request of stockholders entitled to cast not less than a majority of all the votes
entitled to be cast on such matter at such meeting.
(b) Stockholder-Requested Special Meetings. (1) Any stockholder of record seeking
to have stockholders request a special meeting shall, by sending written notice to the secretary
(the Record Date Request Notice) by registered mail, return receipt requested, request the Board
of Directors to fix a record date to determine the stockholders entitled to request a special
meeting (the Request Record Date). The Record Date Request Notice shall set forth the purpose of
the meeting and the matters proposed to be acted on at such meeting, shall be signed by one or more
stockholders of record as of the date of signature (or their agents duly authorized in a writing
accompanying the Record Date Request Notice), shall bear the date of signature of each such
stockholder (or such agent) and shall set forth all information relating
to each such stockholder and each matter proposed to be acted on at the meeting that would be
required to be disclosed in connection with the solicitation of proxies for the election of
directors in an election contest (even if an election contest is not involved), or would otherwise
be required in connection with such a solicitation, in each case pursuant to Regulation 14A (or any
successor provision) under the Securities Exchange Act of 1934, as amended (the Exchange Act).
Upon receiving the Record Date Request Notice, the Board of Directors may fix a Request Record
Date. The Request Record Date shall not precede and shall not be more than ten days after the
close of business on the date on which the resolution fixing the Request Record Date is adopted by
the Board of Directors. If the Board of Directors, within ten days after the date on which a valid
Record Date Request Notice is received, fails to adopt a resolution fixing the Request Record Date,
the Request Record Date shall be the close of business on the tenth day after the first date on
which the Record Date Request Notice is received by the secretary.
(2) In order for any stockholder to request a special meeting to act on any matter that may
properly be considered at a meeting of stockholders, one or more written requests for a special
meeting (collectively, the Special Meeting Request) signed by stockholders of record (or their
agents duly authorized in a writing accompanying the request) as of the Request Record Date
entitled to cast not less than a majority of all of the votes entitled to be cast on such matter at
such meeting (the Special Meeting Percentage) shall be delivered to the secretary. In addition,
the Special Meeting Request shall (a) set forth the purpose of the meeting and the matters
proposed to be acted on at it (which shall be limited to those lawful matters set forth in the
Record Date Request Notice received by the secretary), (b) bear the date of signature of each such
stockholder (or such agent) signing the Special Meeting Request, (c) set forth (i) the name and
address, as they appear in the Corporations books, of each stockholder signing such request (or on
whose behalf the Special Meeting Request is signed), (ii) the class, series and number of all
shares of stock of the Corporation which are owned (beneficially or of record) by such stockholder
and (iii) the nominee holder for, and number of, shares of stock of the Corporation owned
beneficially but not of record by such stockholder, (d) be sent to the secretary by registered
mail, return receipt requested, and (e) be received by the secretary within 60 days after the
Request Record Date. Any requesting stockholder (or agent duly authorized in a writing
accompanying the revocation or the Special Meeting Request) may revoke his, her or its request for
a special meeting at any time by written revocation delivered to the secretary.
(3) The secretary shall inform the requesting stockholders of the reasonably estimated cost
of preparing and delivering the notice of the meeting (including the Corporations proxy
materials). The secretary shall not be required to call a special meeting upon stockholder request
and such meeting shall not be held unless, in addition to the documents required by paragraph (2)
of this Section 3(b), the secretary receives payment of such reasonably estimated cost prior to the
preparation and mailing or delivery of such notice of the meeting.
(4) In the case of any special meeting called by the secretary upon the request of
stockholders (a Stockholder-Requested Meeting), such meeting shall be held at such place, date
and time as may be designated by the Board of Directors; provided, however, that the date of any
Stockholder-Requested Meeting shall be not more than 90 days after the record date for such meeting
(the Meeting Record Date); and provided further that if the Board of Directors fails to
designate, within ten days after the date that a valid Special Meeting Request is
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actually received
by the secretary (the Delivery Date), a date and time for a Stockholder-
Requested Meeting, then such meeting shall be held at 2:00 p.m. local time on the 90th
day after the Meeting Record Date or, if such 90th day is not a Business Day (as defined
below), on the first preceding Business Day; and provided further that in the event that the Board
of Directors fails to designate a place for a Stockholder-Requested Meeting within ten days after
the Delivery Date, then such meeting shall be held at the principal executive office of the
Corporation. In fixing a date for any special meeting, the chairman of the board, chief executive
officer, president or Board of Directors may consider such factors as he, she or it deems relevant,
including, without limitation, the nature of the matters to be considered, the facts and
circumstances surrounding any request for the meeting and any plan of the Board of Directors to
call an annual meeting or a special meeting. In the case of any Stockholder-Requested Meeting, if
the Board of Directors fails to fix a Meeting Record Date that is a date within 30 days after the
Delivery Date, then the close of business on the 30th day after the Delivery Date shall
be the Meeting Record Date. The Board of Directors may revoke the notice for any
Stockholder-Requested Meeting in the event that the requesting stockholders fail to comply with the
provisions of paragraph (3) of this Section 3(b).
(5) If written revocations of the Special Meeting Request have been delivered to the
secretary and the result is that stockholders of record (or their agents duly authorized in
writing), as of the Request Record Date, entitled to cast less than the Special Meeting Percentage
have delivered, and not revoked, requests for a special meeting to the secretary: (i) if the notice
of meeting has not already been delivered, the secretary shall refrain from delivering the notice
of the meeting and send to all requesting stockholders who have not revoked such requests written
notice of any revocation of a request for the special meeting, or (ii) if the notice of meeting has
been delivered and if the secretary first sends to all requesting stockholders who have not revoked
requests for a special meeting on a matter written notice of any revocation of a request for the
special meeting and written notice of the Corporations intention to revoke the notice of the
meeting or for the chairman of the meeting to adjourn the meeting without action on the matter, (A)
the secretary may revoke the notice of the meeting at any time before ten days before the
commencement of the meeting or (B) the chairman of the meeting may call the meeting to order and
adjourn the meeting without acting on the matter. Any request for a special meeting received after
a revocation by the secretary of a notice of a meeting shall be considered a request for a new
special meeting.
(6) The chairman of the board, chief executive officer, president or Board of Directors may
appoint regionally or nationally recognized independent inspectors of elections to act as the agent
of the Corporation for the purpose of promptly performing a ministerial review of the validity of
any purported Special Meeting Request received by the secretary. For the purpose of permitting the
inspectors to perform such review, no such purported Special Meeting Request shall be deemed to
have been delivered to the secretary until the earlier of (i) five Business Days after receipt by
the secretary of such purported request and (ii) such date as the independent inspectors certify to
the Corporation that the valid requests received by the secretary represent, as of the Request
Record Date, stockholders of record entitled to cast not less than the Special Meeting Percentage.
Nothing contained in this paragraph (6) shall in any way be construed to suggest or imply that the
Corporation or any stockholder shall not be entitled to contest the validity of any request,
whether during or after such five Business Day period, or to
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take any other action (including,
without limitation, the commencement, prosecution or defense of any litigation with respect
thereto, and the seeking of injunctive relief in such litigation).
(7) For purposes of these Bylaws, Business Day shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of North Carolina are authorized or
obligated by law or executive order to close.
Section 4. Notice. Not less than ten nor more than 90 days before each meeting of
stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and to
each stockholder not entitled to vote who is entitled to notice of the meeting notice in writing or
by electronic transmission stating the time and place of the meeting and, in the case of a special
meeting or as otherwise may be required by any statute, the purpose for which the meeting is
called, by mail, by presenting it to such stockholder personally, by leaving it at the
stockholders residence or usual place of business or by any other means permitted by the laws of
the State of Maryland. If mailed, such notice shall be deemed to be given when deposited in the
United States mail addressed to the stockholder at the stockholders address as it appears on the
records of the Corporation, with postage thereon prepaid. If transmitted electronically, such
notice shall be deemed to be given when transmitted to the stockholder by an electronic
transmission to any address or number of the stockholder at which the stockholder receives
electronic transmissions. A single notice to all stockholders who share an address shall be
effective as to any stockholder at such address who consents to such notice or after having been
notified of the Corporations intent to give a single notice fails to object in writing to such
single notice within 60 days. Failure to give notice of any meeting to one or more stockholders,
or any irregularity in such notice, shall not affect the validity of any meeting fixed in
accordance with this Article II, or the validity of any proceedings at any such meeting.
Subject to Section 11(a) of this Article II, any business of the Corporation may be transacted
at an annual meeting of stockholders without being specifically designated in the notice, except
such business as is required by any statute to be stated in such notice. No business shall be
transacted at a special meeting of stockholders except as specifically designated in the notice.
The Corporation may postpone or cancel a meeting of stockholders by making a public announcement
(as defined in Section 11(c)(3)) of such postponement or cancellation prior to the meeting. Notice
of the date to which the meeting is postponed shall be given not less than ten days prior to such
date and otherwise in the manner set forth in this section.
Section 5. Organization And Conduct. Every meeting of stockholders shall be conducted by an
individual appointed by the Board of Directors to be chairman of the meeting or, in the absence of
such appointment, by the chairman of the board or, in the case of a vacancy in the office or
absence of the chairman of the board, by one of the following officers present at the meeting in
the following order: the vice chairman of the board, if there is one, the president, the vice
presidents in their order of rank and seniority, or, in the absence of such officers, a chairman
chosen by the stockholders by the vote of a majority of the votes cast by stockholders present in
person or by proxy. The secretary, or, in the secretarys absence, an assistant secretary, or in
the absence of both the secretary and assistant secretaries, a person appointed by the Board of
Directors or, in the absence of such appointment, a person appointed by the chairman of the meeting
shall act as secretary. In the event that the secretary presides at a meeting of the stockholders,
an assistant secretary, or, in the absence of assistant secretaries, an individual
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appointed by the
Board of Directors or the chairman of the meeting, shall record the minutes of the meeting. The
order of business and all other matters of procedure at any meeting of stockholders shall be
determined by the chairman of the meeting. The chairman of the meeting
may prescribe such rules, regulations and procedures and take such action as, in the
discretion of the chairman and without any action by the stockholders, are appropriate for the
proper conduct of the meeting, including, without limitation, (a) restricting admission to the time
set for the commencement of the meeting; (b) limiting attendance at the meeting to stockholders of
record of the Corporation, their duly authorized proxies and other such individuals as the chairman
of the meeting may determine; (c) limiting participation at the meeting on any matter to
stockholders of record of the Corporation entitled to vote on such matter, their duly authorized
proxies and other such individuals as the chairman of the meeting may determine; (d) limiting the
time allotted to questions or comments by participants; (e) determining when the polls should be
opened and closed; (f) maintaining order and security at the meeting; (g) removing any stockholder
or any other individual who refuses to comply with meeting procedures, rules or guidelines as set
forth by the chairman of the meeting; (h) concluding a meeting or recessing or adjourning the
meeting to a later date and time and at a place announced at the meeting; and (i) complying with
any state and local laws and regulations concerning safety and security. Unless otherwise
determined by the chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
Section 6. Quorum. At any meeting of stockholders, the presence in person or by proxy of
stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on
any matter shall constitute a quorum; but this section shall not affect any requirement under any
statute or the charter of the Corporation (as may be amended, modified, supplemented or restated
from time to time, the Charter) for the vote necessary for the adoption of any measure. If,
however, such quorum shall not be present at any meeting of the stockholders, the chairman of the
meeting may adjourn the meeting from time to time to a date not more than 120 days after the
original record date without notice other than announcement at the meeting. At such adjourned
meeting at which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting which has been duly called
and at which a quorum was established, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 7. Voting. A plurality of all the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to elect a director. Each share may be
voted for as many individuals as there are directors to be elected and for whose election the share
is entitled to be voted. A majority of the votes cast at a meeting of stockholders duly called and
at which a quorum is present shall be sufficient to approve any other matter which may properly
come before the meeting, unless more than a majority of the votes cast is required by statute or by
the Charter. Unless otherwise provided by statute or by the Charter, each outstanding share of the
Corporations stock, regardless of class, shall be entitled to one vote on each matter submitted to
a vote at a meeting of stockholders.
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Section 8. Proxies. A stockholder may cast the votes entitled to be cast by the holder of the
shares of stock owned of record by the stockholder in person or by proxy executed by the
stockholder or by the stockholders duly authorized agent in any manner permitted by law. Such
proxy or evidence of authorization of such proxy shall be filed with the secretary of the
Corporation before or at the meeting. No proxy shall be valid more than eleven months after
its date unless otherwise provided in the proxy.
Section 9. Voting Of Stock By Certain Holders. Stock of the Corporation registered in the
name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by
the president or a vice president, a general partner or trustee thereof, as the case may be, or a
proxy appointed by any of the foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution of the governing body of such
corporation or other entity or agreement of the partners of a partnership presents a certified copy
of such bylaw, resolution or agreement, in which case such person may vote such stock. Any director
or other fiduciary may vote stock registered in his or her name in his or her capacity as such
fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify
in writing to the Corporation that any shares of stock registered in the name of the stockholder
are held for the account of a specified person other than the stockholder. The resolution shall set
forth the class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be contained in it; if
the certification is with respect to a record date, the time after the record date within which the
certification must be received by the Corporation; and any other provisions with respect to the
procedure which the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as, for the purposes set
forth in the certification, the stockholder of record of the specified stock in place of the
stockholder who makes the certification.
Section 10. Inspectors. The Board of Directors or the chair of the meeting may appoint,
before or at the meeting, one or more inspectors for the meeting and any successor thereto. The
inspectors, if any, shall (i) determine the number of shares of stock represented at the meeting,
in person or by proxy and the validity and effect of proxies, (ii) receive and tabulate all votes,
ballots or consents, (iii) report such tabulation to the chair of the meeting, (iv) hear and
determine all challenges and questions arising in connection with the right to vote, and (v) do
such acts as are proper to fairly conduct the election or vote. Each such report shall be in
writing and signed by him or her or by a majority of them if there is more than one inspector
acting at such meeting. If there is more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors on the number of shares
represented at the meeting and the results of the voting shall be prima facie evidence thereof.
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Section 11. Advance Notice Of Stockholder Nominees For Director And Other Stockholder
Proposals.
(a) Annual Meetings of Stockholders. (1) Nominations of individuals for election to
the Board of Directors and the proposal of other business to be considered by the stockholders may
be made at an annual meeting of stockholders (i) pursuant to the Corporations notice of meeting,
(ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record both at the time of giving of notice by the stockholder
as provided for in this Section 11(a) and at the time of the annual meeting, who is entitled to
vote at the meeting in the election of each individual so nominated or on any such other business
and who has complied with this Section 11(a).
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 11, the stockholder must
have given timely notice thereof in writing to the secretary of the Corporation and such other
business must otherwise be a proper matter for action by the stockholders. To be timely, a
stockholders notice shall set forth all information required under this Section 11 and shall be
delivered to the secretary at the principal executive office of the Corporation not earlier than
the 150th day nor later than 5:00 p.m., Eastern Time, on the 120th day prior
to the first anniversary of the date of the proxy statement for the preceding years annual
meeting; provided, however, that in the event that the date of the annual meeting is advanced or
delayed by more than 30 days from the first anniversary of the date of the preceding years annual
meeting, notice by the stockholder to be timely must be so delivered not earlier than the
150th day prior to the date of such annual meeting and not later than 5:00 p.m., Eastern
Time, on the later of the 120th day prior to the date of such annual meeting or the
tenth day following the day on which public announcement of the date of such meeting is first made.
The public announcement of a postponement or adjournment of an annual meeting shall not commence a
new time period for the giving of a stockholders notice as described above.
(3) Such stockholders notice shall set forth:
(i) as to each individual whom the stockholder proposes to nominate for election or
reelection as a director (each, a Proposed Nominee), all information relating to the Proposed
Nominee that would be required to be disclosed in connection with the solicitation of proxies for
the election of the Proposed Nominee as a director in an election contest (even if an election
contest is not involved), or would otherwise be required in connection with such solicitation, in
each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the
rules thereunder (including the Proposed Nominees written consent to being named in the proxy
statement as a nominee and to serving as a director if elected);
(ii) as to any business that the stockholder proposes to bring before the meeting, a
description of such business, the stockholders reasons for proposing such business at the meeting
and any material interest in such business of such stockholder or any Stockholder Associated Person
(as defined below), individually or in the aggregate, including any anticipated benefit to the
stockholder or the Stockholder Associated Person therefrom;
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(iii) as to the stockholder giving the notice, any Proposed Nominee and any Stockholder
Associated Person,
(A) the class, series and number of all shares of stock or other securities of the
Corporation (collectively, the Company Securities), if any, which are owned (beneficially or of
record) by such stockholder, Proposed Nominee or Stockholder Associated Person, the date on which
each such Company Security was acquired and the investment intent of such acquisition, and any
short interest (including any opportunity to profit or share in any benefit from any decrease in
the price of such stock or other security) in any Company Securities of any such person,
(B) the nominee holder for, and number of, any Company Securities owned beneficially but not
of record by such stockholder, Proposed Nominee or Stockholder Associated Person,
(C) whether and the extent to which such stockholder, Proposed Nominee or Stockholder
Associated Person, directly or indirectly (through brokers, nominees or otherwise), is subject to
or during the last six months has engaged in any hedging, derivative or other transaction or series
of transactions or entered into any other agreement, arrangement or understanding (including any
short interest, any borrowing or lending of securities or any proxy or voting agreement), the
effect or intent of which is to (I) manage risk or benefit of changes in the price of (x) Company
Securities or (y) any security of any entity that was listed in the Peer Group in the Stock
Performance Graph in the most recent annual report to security holders of the Corporation (a Peer
Group Company) for such stockholder, Proposed Nominee or Stockholder Associated Person or
(II) increase or decrease the voting power of such stockholder, Proposed Nominee or
Stockholder Associated Person in the Corporation (or, as applicable, in any Peer Group Company)
disproportionately to such persons economic interest in the Company Securities (or, as applicable,
in any Peer Group Company),
(D) any substantial interest, direct or indirect (including, without limitation, any existing
or prospective commercial, business or contractual relationship with the Corporation or any
affiliate thereof), by security holdings or otherwise, of such stockholder, Proposed Nominee or
Stockholder Associated Person, in the Corporation, other than an interest arising from the
ownership of Company Securities where such stockholder, Proposed Nominee or Stockholder Associated
Person receives no extra or special benefit not shared on a pro rata basis by all other holders of
the same class or series;
(iv) as to the stockholder giving the notice, any Stockholder Associated Person with an
interest or ownership referred to in clauses (ii) or (iii) of this paragraph (3) of this Section
11(a) and any Proposed Nominee,
(A) the name and address of such stockholder, as they appear on the Corporations stock
ledger, and the current name and business address, if different, of each such Stockholder
Associated Person and any Proposed Nominee and
(B) the investment strategy or objective, if any, of such stockholder and each such
Stockholder Associated Person who is not an individual and a copy of
8
the prospectus, offering
memorandum or similar document, if any, provided to investors or potential investors in such
stockholder and each such Stockholder Associated Person; and
(v) to the extent known by the stockholder giving the notice, the name and address of any
other stockholder supporting the nominee for election or reelection as a director or the proposal
of other business on the date of such stockholders notice.
(4) Notwithstanding anything in this subsection (a) of this Section 11 to the contrary, in
the event that the number of directors to be elected to the Board of Directors is increased, and
there is no public announcement of such action at least 130 days prior to the first anniversary of
the date of the proxy statement for the preceding years annual meeting, a stockholders notice
required by this Section 11(a) 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 office of the Corporation not later than 5:00 p.m., Eastern Time, on the tenth
day following the day on which such public announcement is first made by the Corporation.
(5) For purposes of this Section 11, Stockholder Associated Person of any stockholder means
(i) any person acting in concert with such stockholder, (ii) any beneficial owner of shares of
stock of the Corporation owned of record or beneficially by such stockholder (other than a
stockholder that is a depositary) and (iii) any person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control with, such
stockholder or such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Corporations
notice of meeting. Nominations of individuals for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected only (i) by or at the
direction of the Board of Directors or (ii) provided that the special meeting has been called in
accordance with Section 3 of this Article II for the purpose of electing directors, by any
stockholder of the Corporation who is a stockholder of record both at the time of giving of notice
provided for in this Section 11 and at the time of the special meeting, who is entitled to vote at
the meeting in the election of each individual so nominated and who has complied with the notice
procedures set forth in this Section 11. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more individuals to the Board of Directors, any
such stockholder may nominate an individual or individuals (as the case may be) for election as a
director as specified in the Corporations notice of meeting, if the stockholders notice,
containing the information required by paragraph (a)(3) of this Section 11, shall be delivered to
the secretary at the principal executive office of the Corporation not earlier than the
120th day prior to such special meeting and not later than 5:00 p.m., Eastern Time on
the later of the 90th day prior to such special meeting or 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 meeting. The public announcement
of a postponement or adjournment of a special meeting shall not commence a new time period for the
giving of a stockholders notice as described above.
9
(c) General. (1) If information submitted pursuant to this Section 11 by any stockholder
proposing a nominee for election as a director or any proposal for other business at a meeting of
stockholders shall be inaccurate in any material respect, such information may be deemed not to
have been provided in accordance with this Section 11. Any such stockholder
shall notify the Corporation of any inaccuracy or change (within two Business Days of becoming
aware of such inaccuracy or change) in any such information. Upon written request by the secretary
or the Board of Directors, any such stockholder shall provide, within five Business Days of
delivery of such request (or such other period as may be specified in such request), (A) written
verification, satisfactory, in the discretion of the Board of Directors or any authorized officer
of the Corporation, to demonstrate the accuracy of any information submitted by the stockholder
pursuant to this Section 11, and (B) a written update of any information submitted by the
stockholder pursuant to this Section 11 as of an earlier date. If a stockholder fails to provide
such written verification or written update within such period, the information as to which written
verification or written update was requested may be deemed not to have been provided in accordance
with this Section 11.
(2) Only such individuals who are nominated in accordance with this Section 11 shall be
eligible for election by stockholders as directors, and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with this
Section 11. The chairman of the meeting shall have the power to determine whether a nomination or
any other business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with this Section 11.
(3) Public announcement shall mean disclosure (i) in a press release reported by the Dow
Jones News Service, Associated Press, Business Wire, PR Newswire or other widely circulated news or
wire service or (ii) in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 11, a stockholder shall also
comply with all applicable requirements of state law and of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 11. Nothing in this
Section 11 shall be deemed to affect any right of a stockholder to request inclusion of a proposal
in, or the right of the Corporation to omit a proposal from, the Corporations proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act. Nothing in this
Section 11 shall require disclosure of revocable proxies received by the stockholder or Stockholder
Associated Person pursuant to a solicitation of proxies after the filing of an effective Schedule
14A by such stockholder or Stockholder Associated Person under Section 14(a) of the Exchange Act.
Section 12. Control Share Acquisition Act. Notwithstanding any other provision of the
Charter or these Bylaws, Title 3, Subtitle 7 of the Maryland General Corporation Law (including any
successor statute, the MGCL) shall not apply to any acquisition by any person of shares of stock
of the Corporation. This section may be repealed, in whole or in part, at any time, whether before
or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any
successor bylaw, apply to any prior or subsequent control share acquisition.
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Section 13. Stockholders Consent In Lieu Of Meeting. Any action required or permitted to be
taken at any meeting of stockholders may be taken without a meeting (a) if a unanimous consent
setting forth the action is given in writing or by electronic transmission by each stockholder
entitled to vote on the matter and filed with the minutes of proceedings of the
stockholders or (b) if the action is advised, and submitted to the stockholders for approval,
by the Board of Directors and a consent in writing or by electronic transmission of stockholders
entitled to cast not less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting of stockholders is delivered to the Corporation in accordance with the
MGCL. The Corporation shall give notice of any action taken by less than unanimous consent to each
stockholder not later than ten days after the effective time of such action.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation shall be managed
under the direction of its Board of Directors.
Section 2. Number, Tenure And Qualifications. At any regular meeting or at any special
meeting called for that purpose, a majority of the entire Board of Directors may establish,
increase or decrease the number of directors, provided that the number thereof shall never be less
than the minimum number required by the MGCL nor more than 25, and further provided that the tenure
of office of a director shall not be affected by any decrease in the number of directors. Any
director of the Corporation may resign at any time by delivering his or her resignation to the
Board of Directors, the chairman of the board or the secretary. Any resignation shall take effect
immediately upon its receipt or at such later time specified in the resignation. The acceptance of
a resignation shall not be necessary to make it effective unless otherwise stated in the
resignation.
Section 3. Annual And Regular Meetings. An annual meeting of the Board of Directors shall be
held immediately after and at the same place as the annual meeting of stockholders, no notice other
than this Bylaw being necessary. In the event such meeting is not so held, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors. The Board of Directors may provide, by resolution, the time and
place for the holding of regular meetings of the Board of Directors without other notice than such
resolution.
Section 4. Special Meetings. Special meetings of the Board of Directors may be called by or
at the request of the chairman of the board, the chief executive officer, the president or by a
majority of the directors then in office. The person or persons authorized to call special meetings
of the Board of Directors may fix any place as the place for holding any special meeting of the
Board of Directors called by them. The Board of Directors may provide, by resolution, the time and
place for the holding of special meetings of the Board of Directors without other notice than such
resolution.
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Section 5. Notice. Notice of any special meeting of the Board of Directors shall be
delivered personally or by telephone, electronic mail, facsimile transmission, courier or United
States mail to each director at his or her business or residence address. Notice by personal
delivery, telephone, electronic mail or facsimile transmission shall be given at least 24 hours
prior to the meeting. Notice by United States mail shall be given at least three days prior to the
meeting. Notice by courier shall be given at least two days prior to the meeting. Telephone
notice shall be deemed to be given when the director or his or her agent is personally given such
notice in a telephone call to which the director or his or her agent is a party. Electronic mail
notice shall be deemed to be given upon transmission of the message to the electronic mail address
given to the Corporation by the director. Facsimile transmission notice shall be deemed to be given
upon completion of the transmission of the message to the number given to the Corporation by the
director and receipt of a completed answer-back indicating receipt. Notice by United States mail
shall be deemed to be given when deposited in the United States mail properly addressed, with
postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or
delivered to a courier properly addressed. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board of Directors need be stated in the
notice, unless specifically required by statute or these Bylaws.
Section 6. Quorum. A majority of the directors shall constitute a quorum for transaction of
business at any meeting of the Board of Directors, provided that, if less than a majority of such
directors is present at such meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice, and provided further that if, pursuant to applicable law,
the Charter or these Bylaws, the vote of a majority or other percentage of a particular group of
directors is required for action, a quorum must also include a majority of such group.
The directors present at a meeting which has been duly called and at which a quorum was
established may continue to transact business until adjournment, notwithstanding the withdrawal
from the meeting of enough directors to leave fewer than were required to establish a quorum.
Section 7. Voting. The action of a majority of the directors present at a meeting at which a
quorum is present shall be the action of the Board of Directors, unless the concurrence of a
greater proportion is required for such action by applicable law, the Charter or these Bylaws. If
enough directors have withdrawn from a meeting to leave fewer than were required to establish a
quorum, but the meeting is not adjourned, the action of the majority of that number of directors
necessary to constitute a quorum at such meeting shall be the action of the Board of Directors,
unless the concurrence of a greater proportion is required for such action by applicable law, the
Charter or these Bylaws.
Section 8. Organization. At each meeting of the Board of Directors, the chairman of the
board or, in the absence of the chairman of the board, the Lead Director, if any, or in the absence
of the chairman of board and a Lead Director, the vice chairman of the board, if any, shall act as
chairman of the meeting. In the absence of all of the foregoing, the chief executive officer or, in
the absence of the chief executive officer, the president or in the absence of the president, a
director chosen by a majority of the directors present, shall act as chairman of the meeting. The
secretary or, in his or her absence, an assistant secretary of the Corporation or, in
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the absence
of the secretary and all assistant secretaries, a person appointed by the chairman of the meeting,
shall act as secretary of the meeting.
Section 9. Telephone Meetings. Directors may participate in a meeting by means of a
conference telephone or other communications equipment if all persons participating in the
meeting can hear each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 10. Consent By Directors Without A Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting, if a consent in
writing or by electronic transmission to such action is given by each director and is filed with
the minutes of proceedings of the Board of Directors.
Section 11. Vacancies. If for any reason any or all the directors cease to be directors,
such event shall not terminate the Corporation or affect these Bylaws or the powers of the
remaining directors hereunder. Except as may be provided by the Board of Directors in setting the
terms of any class or series of preferred stock, any vacancy on the Board of Directors may be
filled only by a majority of the remaining directors, even if the remaining directors do not
constitute a quorum. Any director elected to fill a vacancy shall serve for the remainder of the
full term of the class in which the vacancy occurred and until a successor is elected and
qualifies.
Section 12. Compensation. Directors shall not receive any stated salary for their services
as directors but, by resolution of the Board of Directors, may receive compensation per year and/or
per meeting and/or per visit to real property or other facilities owned or leased by the
Corporation and for any service or activity they performed or engaged in as directors. Directors
may be reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of
the Board of Directors or of any committee thereof and for their expenses, if any, in connection
with each property visit and any other service or activity they performed or engaged in as
directors; but nothing herein contained shall be construed to preclude any directors from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 13. Reliance. Each director and officer of the Corporation shall, in the performance
of his or her duties with respect to the Corporation, be entitled to rely on any information,
opinion, report or statement, including any financial statement or other financial data, prepared
or presented by an officer or employee of the Corporation whom the director or officer reasonably
believes to be reliable and competent in the matters presented, by a lawyer, certified public
accountant or other person, as to a matter which the director or officer reasonably believes to be
within the persons professional or expert competence, or, with respect to a director, by a
committee of the Board of Directors on which the director does not serve, as to a matter within its
designated authority, if the director reasonably believes the committee to merit confidence.
Section 14. Certain Rights of Directors, Officers, Employees and Agents. A director who is
not also an officer of the Corporation shall have no responsibility to devote his or her full time
to the affairs of the Corporation. Subject to compliance with any policies adopted by the Board of
Directors, any director or officer, employee or agent of the Corporation, in his or her personal
capacity or in a capacity as an affiliate, employee, or agent of any other person, or
13
otherwise, may have business interests and engage in business activities similar to, in addition to or in
competition with those of or relating to the Corporation.
Section 15. Ratification. The Board of Directors or the stockholders may ratify and make
binding on the Corporation any action or inaction by the Corporation or its officers to the
extent that the Board of Directors or the stockholders could have originally authorized the
matter. Moreover, any action or inaction questioned in any stockholders derivative proceeding or
any other proceeding on the ground of lack of authority, defective or irregular execution, adverse
interest of a director, officer or stockholder, non-disclosure, miscomputation, the application of
improper principles or practices of accounting, or otherwise, may be ratified, before or after
judgment, by the Board of Directors or by the stockholders, and if so ratified, shall have the same
force and effect as if the questioned action or inaction had been originally duly authorized, and
such ratification shall be binding upon the Corporation and its stockholders and shall constitute a
bar to any claim or execution of any judgment in respect of such questioned action or inaction.
Section 16. Emergency Provisions. Notwithstanding any other provision in the Charter or
these Bylaws, this Section 16 shall apply during the existence of any catastrophe, or other similar
emergency condition, as a result of which a quorum of the Board of Directors under Article III of
these Bylaws cannot readily be obtained (an Emergency). During any Emergency, unless otherwise
provided by the Board of Directors, (i) a meeting of the Board of Directors or a committee thereof
may be called by any director or officer by any means feasible under the circumstances; (ii) notice
of any meeting of the Board of Directors during such an Emergency may be given less than 24 hours
prior to the meeting to as many directors and by such means as may be feasible at the time,
including publication, television or radio, and (iii) the number of directors necessary to
constitute a quorum shall be one-third of the entire Board of Directors.
ARTICLE IV
COMMITTEES
Section 1. Number, Tenure And Qualifications. The Board of Directors may appoint from among
its members an Audit Committee, a Compensation Committee, a Governance and Nominating Committee and
other committees, composed of one or more directors (in each case subject to any applicable legal
or stock exchange listing requirement), to serve at the pleasure of the Board of Directors.
Section 2. Powers. The Board of Directors may delegate to committees appointed under Section
1 of this Article any of the powers of the Board of Directors, except as prohibited by law.
Section 3. Meetings. Notice of committee meetings shall be given in the same manner as
notice for special meetings of the Board of Directors. A majority of the members of the committee
shall constitute a quorum for the transaction of business at any meeting of the committee. The act
of a majority of the committee members present at a meeting shall be the act of such committee. The
Board of Directors may designate a chairman of any committee, and such chairman or, in the absence
of a chairman, any two members of any committee (if there are
14
at least two members of the committee) may fix the time and place of its meeting unless the Board shall otherwise provide. Each
committee shall keep minutes of its proceedings.
Section 4. Telephone Meetings. Members of a committee of the Board of Directors may
participate in a meeting by means of a conference telephone or other communications
equipment if all persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 5. Consent By Committees Without A Meeting. Any action required or permitted to be
taken at any meeting of a committee of the Board of Directors may be taken without a meeting, if a
consent in writing or by electronic transmission to such action is given by each member of the
committee and is filed with the minutes of proceedings of such committee.
Section 6. Vacancies. Subject to the provisions hereof, the Board of Directors shall have
the power at any time to change the membership of any committee, to fill any vacancy, to designate
an alternate member to replace any absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. General Provisions. The officers of the Corporation shall include a president, a
secretary and a treasurer and may include a chairman of the board, a vice chairman of the board, a
chief executive officer, one or more vice presidents, a chief operating officer, a chief financial
officer, a controller, a general counsel, one or more assistant secretaries and one or more
assistant treasurers. In addition, the Board of Directors may from time to time elect such other
officers with such powers and duties as they shall deem necessary or desirable. The officers of the
Corporation shall be elected annually by the Board of Directors, except that the chief executive
officer or president may from time to time appoint one or more vice presidents, assistant
secretaries and assistant treasurers or other officers. Each officer shall serve until his or her
successor is elected and qualifies or until his or her death, or his or her resignation or removal
in the manner hereinafter provided. Any two or more offices except president and vice president may
be held by the same person. Election of an officer or agent shall not of itself create contract
rights between the Corporation and such officer or agent.
Section 2. Removal And Resignation. Any officer or agent of the Corporation may be removed,
with or without cause, by the Board of Directors if in its judgment the best interests of the
Corporation would be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Any officer of the Corporation may resign at any time by
delivering his or her resignation to the Board of Directors, the chairman of the board, the
president or the secretary. Any resignation shall take effect immediately upon its receipt or at
such later time specified in the resignation. The acceptance of a resignation shall not be
necessary to make it effective unless otherwise stated in the resignation. Such resignation shall
be without prejudice to the contract rights, if any, of the Corporation.
Section 3. Vacancies. A vacancy in any office may be filled by the Board of Directors for
the balance of the term.
15
Section 4. Chairman Of The Board. The Board of Directors shall designate a chairman of the
board. The chairman may serve in such role in either an executive or a non-executive capacity. The
chairman of the board shall preside over the meetings of the Board of
Directors and of the stockholders at which he shall be present. The chairman of the board shall
perform such other duties as may be assigned to him or her by the Board of Directors.
Section 5. Chief Executive Officer. The Board of Directors may designate a chief executive
officer. In the absence of such designation, the chairman of the board shall be the chief executive
officer of the Corporation. The chief executive officer shall have general responsibility for
implementation of the policies of the Corporation, as determined by the Board of Directors, and for
the management of the business and affairs of the Corporation. He or she may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of
the Corporation or shall be required by law to be otherwise executed; and in general shall perform
all duties incident to the office of chief executive officer and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 6. Chief Operating Officer. The Board of Directors may designate a chief operating
officer. The chief operating officer shall have the responsibilities and duties as determined by
the Board of Directors or the chief executive officer.
Section 7. Chief Financial Officer. The Board of Directors may designate a chief financial
officer. The chief financial officer shall have the responsibilities and duties as determined by
the Board of Directors or the chief executive officer.
Section 8. President. In the absence of a chief executive officer, the president shall in
general supervise and control all of the business and affairs of the Corporation. In the absence of
a designation of a chief operating officer by the Board of Directors, the president shall be the
chief operating officer. The president may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly delegated by the Board
of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be
required by law to be otherwise executed; and in general shall perform all duties incident to the
office of president and such other duties as may be prescribed by the Board of Directors from time
to time.
Section 9. Vice Presidents. In the absence of the president or in the event of a vacancy in
such office, the vice president (or in the event there be more than one vice president, the vice
presidents in the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of the president and
when so acting shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be assigned to such vice
president by the president or by the Board of Directors. The Board of Directors may designate one
or more vice presidents as executive vice president, senior vice president, or as vice president
for particular areas of responsibility.
Section 10. Secretary. The secretary shall (a) keep the minutes of the proceedings of the
stockholders, the Board of Directors and committees of the Board of Directors in one or more
16
books provided for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of
the seal of the Corporation; (d) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder; (e) have general charge of the stock
transfer books of the Corporation; and (f) in general perform such other duties as from time to
time may be assigned to him or her by the chief executive officer, the president or by the Board of
Directors.
Section 11. Treasurer. The treasurer shall have the custody of the funds and securities of
the Corporation and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. In the absence of a designation of a chief financial officer by the Board of Directors,
the treasurer shall be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the president and
Board of Directors, at the regular meetings of the Board of Directors or whenever it may so
require, an account of all his or her transactions as treasurer and of the financial condition of
the Corporation.
Section 12. Assistant Secretaries And Assistant Treasurers. The assistant secretaries and
assistant treasurers, in general, shall perform such duties as shall be assigned to them by the
secretary or treasurer, respectively, or by the president or the Board of Directors.
Section 13. General Counsel. The general counsel shall have general supervision of all legal
matters relating to the Corporation (including its subsidiaries and affiliates), including
litigation by and against the Corporation, preparation of documents relating to transactions to
which the Corporation is a party, advice to the Board of Directors and management concerning legal
issues affecting the Corporation and retention of counsel to represent the Corporation. The general
counsel shall perform such other duties and have such authority as may be assigned to her or him by
the Board of Directors, the chairman of the board or the president.
Section 14. Controller. The controller shall be the chief accounting officer of the
Corporation and shall be responsible for maintenance of the financial records and the internal
accounting systems of the Corporation (including its subsidiaries and affiliates) and for the
conduct and surveillance of general corporate accounting procedures. The controller shall supervise
the preparation of the Corporations financial statements and other financial reports and
statistics as required by management and governmental agencies and shall perform such other duties
as the chief financial officer of the Corporation or the Board of Directors may from time to time
prescribe.
Section 15. Compensation. The compensation of the officers shall be fixed from time to time
by or under the authority of the Board of Directors or the executive officers of the Corporation
and no officer shall be prevented from receiving such compensation by reason of the fact that he is
also a director.
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ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer or agent to enter
into any contract or to execute and deliver any instrument in the name of and on behalf of the
Corporation and such authority may be general or confined to specific instances. Any agreement,
deed, mortgage, lease or other document shall be valid and binding upon the Corporation when duly
authorized or ratified by action of the Board of Directors and executed by an authorized person.
Section 2. Checks And Drafts. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by
such officer or agent of the Corporation in such manner as shall from time to time be determined by
the Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise employed shall be deposited
or invested from time to time to the credit of the Corporation as the Board of Directors, the chief
executive officer, the chief financial officer, the treasurer or any other officer designated by
the Board of Directors may determine.
ARTICLE VII
STOCK
Section 1. Certificates. The Corporation may issue some or all of the shares of any or all
of the Corporations classes or series of stock without certificates if authorized by the Board of
Directors. In the event that the Corporation issues shares of stock represented by certificates,
such certificates shall be in such form as prescribed by the Board of Directors or a duly
authorized officer, shall contain the statements and information required by the MGCL and shall be
signed by the officers of the Corporation in the manner permitted by the MGCL. In the event that
the Corporation issues shares of stock without certificates, the Corporation shall provide to the
record holders of such shares, for so long as the same is required by the MGCL, a written statement
of the information required by the MGCL to be included on stock certificates. There shall be no
differences in the rights and obligations of stockholders based on whether or not their shares are
represented by certificates. If a class or series of stock is authorized by the Board of Directors
to be issued without certificates, no stockholder shall be entitled to a certificate or
certificates representing any shares of such class or series of stock held by such stockholder
unless otherwise determined by the Board of Directors and then only upon written request by such
stockholder to the secretary of the Corporation.
Section 2. Transfers. All transfers of shares of stock shall be made on the books of the
Corporation, by the holder of the shares, in person or by his or her attorney, in such manner as
the Board of Directors or any officer of the Corporation may prescribe and, if such shares are
certificated, upon surrender of certificates duly endorsed. The issuance of a new certificate upon
the transfer of certificated shares is subject to the determination of the Board of Directors that
such shares shall no longer be represented by certificates. Upon the transfer of uncertificated
shares, to the extent then required by the MGCL, the Corporation shall provide to record holders
18
of such shares a written statement of the information required by the MGCL to be included on stock
certificates.
The Corporation shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class or series of stock will be
subject in all respects to the Charter and all of the terms and conditions contained therein.
Section 3. Replacement Certificate. Any officer of the Corporation may direct a new
certificate or certificates to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, destroyed, stolen or mutilated, upon the
making of an affidavit of that fact by the person claiming the certificate of stock to be lost,
destroyed, stolen or mutilated; provided, however, if such shares have ceased to be certificated,
no new certificate shall be issued unless requested in writing by such stockholder and the Board of
Directors has determined that such certificates may be issued. Unless otherwise determined by an
officer of the Corporation, the owner of such lost, destroyed, stolen or mutilated certificate or
certificates, or his or her legal representative, shall be required, as a condition precedent to
the issuance of a new certificate or certificates, to give the Corporation a bond in such sums as
it may direct as indemnity against any claim that may be made against the Corporation.
Section 4. Fixing Of Record Date. The Board of Directors may set, in advance, a record date
for the purpose of determining stockholders entitled to notice of or to vote at any meeting of
stockholders or determining stockholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of stockholders for any other
proper purpose. Such date, in any case, shall not be prior to the close of business on the day the
record date is fixed and shall be not more than 90 days and, in the case of a meeting of
stockholders, not less than ten days, before the date on which the meeting or particular action
requiring such determination of stockholders of record is to be held or taken.
Except as otherwise provided in Section 3(b)(4) of Article II, if no record date is fixed for
the determination of stockholders, (a) the record date for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on
the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is
the closer date to the meeting; and (b) the record date for the determination of stockholders
entitled to receive payment of a dividend or an allotment of any other rights shall be the close of
business on the day on which the resolution of the directors, declaring the dividend or allotment
of rights, is adopted.
When a record date for the determination of stockholders entitled to notice of and to vote at
any meeting of stockholders has been set as provided in this section, such record date shall
continue to apply to the meeting if adjourned or postponed, except if the meeting is adjourned to a
date more than 120 days or postponed to a date more than 90 days after the record date
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originally fixed for the meeting, in which case a new record date for such meeting may be determined as set
forth herein.
Section 5. Stock Ledger. The Board of Directors shall have the power and authority to make
all such rules and regulations as it may deem expedient concerning the issuance and registration of
shares of stock, and certificates representing the same, if any, including the appointment from
time to time of transfer agents and registrars. The Corporation shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an original or duplicate
stock ledger containing the name and address of each stockholder and the number of shares of each
class held by such stockholder.
Section 6. Fractional Stock; Issuance Of Units. The Board of Directors may issue fractional
stock or provide for the issuance of scrip, all on such terms and under such conditions as they may
determine. Notwithstanding any other provision of the Charter or these Bylaws, the Board of
Directors may issue units consisting of different securities of the Corporation. Any security
issued in a unit shall have the same characteristics as any identical securities issued by the
Corporation, except that the Board of Directors may provide that for a specified period securities
of the Corporation issued in such unit may be transferred on the books of the Corporation only in
such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the
Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. Authorization. Dividends and other distributions upon the stock of the
Corporation may be authorized by the Board of Directors, subject to the provisions of applicable
law and the Charter. Dividends and other distributions may be paid in cash, property or stock of
the Corporation, subject to the provisions of applicable law and the Charter.
Section 2. Contingencies. Before payment of any dividends or other distributions, there may
be set aside out of any assets of the Corporation available for dividends or other distributions
such sum or sums as the Board of Directors may from time to time, in its absolute discretion, think
proper as a reserve fund for contingencies, for equalizing dividends or other distributions, for
repairing or maintaining any property of the Corporation or for such other purpose as the Board of
Directors shall determine, and the Board of Directors may modify or abolish any such reserve.
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ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter, the Board of Directors may from time to time adopt,
amend, revise or terminate any policy or policies with respect to investments by the Corporation as
it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. Seal. The Board of Directors may authorize the adoption of a seal by the
Corporation. The seal shall contain the name of the Corporation and the year of its incorporation
and the words Incorporated Maryland. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof.
Section 2. Affixing Seal. Whenever the Corporation is permitted or required to affix its
seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation
relating to a seal to place the word (SEAL) adjacent to the signature of the person authorized to
execute the document on behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
Section 1. Right To Indemnification. To the maximum extent permitted by Maryland law in
effect from time to time, the Corporation shall indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (a) any individual who is a present or
former director or officer of the Corporation or a subsidiary thereof and who is made or threatened
to be made a party to the proceeding by reason of his or her service in that capacity (or by reason
of his or her service as a director or officer of Sara Lee Corporation or a subsidiary thereof in
connection with Sara Lees Branded Apparel Americas/Asia business) or (b) any individual who, while
a director or officer of the Corporation and at the request of the Corporation, serves or has
served another corporation, partnership, joint venture, trust, employee benefit plan or any other
enterprise as a director, officer, partner or trustee of such corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made
a party to the proceeding by reason of his or her service in that capacity. The Corporation may,
with the approval of its Board of Directors, provide such indemnification and advance for expenses
to a person who served a predecessor of the Corporation in any of the capacities described in (a)
or (b) above (other than Sara Lee or a subsidiary thereof) and to any employee or agent of the
Corporation or a predecessor of the Corporation.
Section 2. Change In Control. In the event of a change in control of the Corporation, any
person claiming a right to be indemnified or to an advance of expenses by the Corporation may have
his right to be indemnified or to an advance of expenses and the extent of indemnification and
advance of expenses to which he is entitled determined by independent legal
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counsel selected by a committee composed of all of the continuing directors, or in the event there
are no continuing directors, by independent legal counsel selected by the person claiming
indemnification or advance of expenses, with the approval of the chief executive officer of the
Corporation, which approval will not be unreasonably withheld. As used in this section, continuing
director shall mean a director who was a member of the Board of Directors prior to the change in
control and who is not an Acquiring Person (as such term is defined in the Rights Agreement to be
entered into between the Corporation and Computershare Investor Services, LLC, Rights Agent, as the
same may be amended from time to time, or any successor agreement thereto), and is not and was not
an affiliate or associate of an Acquiring Person or a representative or nominee of an Acquiring
Person or of any such affiliate or associate. As used in this Article XII, change in control
shall mean any change in the Board of Directors of the Corporation, resulting in continuing
directors constituting less than a majority of the Board of Directors.
Section 3. Time For Payment Enforcement. Any indemnification, or payment of expenses in
advance of the final disposition of any proceeding, shall be made promptly, and in any event within
60 days, upon the written request of the director or officer entitled to indemnification (the
Indemnified Party). The right to indemnification and advance of expenses hereunder shall be
enforceable by the Indemnified Party in any court of competent jurisdiction, if (i) the Corporation
denies such request, in whole or in part, or (ii) no disposition thereof is made within 60 days.
The Indemnified Partys costs and expenses incurred in connection with successfully establishing
his or her right to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation.
Section 4. General. The indemnification and advance of expenses provided by this Article XII
(a) shall not be deemed exclusive of any other rights to which a person seeking indemnification or
advance of expenses may be entitled under any law (common or statutory), or any agreement, vote of
stockholders or disinterested directors or other provision that is not contrary to law, both as to
action in his or her official capacity and as to action in another capacity while holding office or
while employed by or acting as agent of the Corporation, (b) shall vest immediately upon election
of a director or officer and shall continue in respect of all events occurring while a person was a
director or officer after such person has ceased to be a director or officer (including after a
change in control of the Corporation), and (c) shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to indemnification and advance of expenses
hereunder shall be deemed to be a contract between the Corporation and each director or officer of
the Corporation who serves or served in such capacity at any time while this Article XII is in
effect.
Section 5. Effective Time. This Article XII shall be effective from and after the date of
its adoption and shall apply to all proceedings arising prior to or after such date, regardless of
whether relating to facts or circumstances occurring prior to or after such date. Neither the
amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the
Charter or Bylaws inconsistent with this Article, shall apply to or affect in any respect the
applicability of this Article with respect to any act or failure to act which occurred prior to
such amendment, repeal or adoption.
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Section 6. Further Action. The Board of Directors may take such action as is necessary to
carry out the provisions of this Article XII and is expressly empowered to adopt, approve and amend
from time to time such resolutions or contracts implementing such provisions or such further
arrangements for indemnification or advance for expenses as may be permitted by law.
Section 7. Severability. If this Article XII or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer of the Corporation as to costs, charges and expenses (including
attorneys fees), judgments, fines and amounts paid in settlement with respect to any proceeding,
whether civil, criminal, administrative or investigative, including an action by or in the right of
the Corporation, to the full extent permitted by any applicable portion of this Article that shall
not have been invalidated and to the full extent permitted by applicable law.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter or these Bylaws or
pursuant to applicable law, a waiver thereof in writing or by electronic transmission, whether
before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Neither the business to be transacted at nor the purpose of any meeting need be set forth in the
waiver of notice, unless specifically required by statute. The attendance of any person at any
meeting shall constitute a waiver of notice of such meeting, except where such person attends a
meeting for the express purpose of objecting to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision
of these Bylaws and to make new Bylaws.
Amended and Restated as of December 9, 2008.
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