UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 25, 2007
Hanesbrands Inc.
(Exact name of registrant as specified in its charter)
| Maryland | 001-32891 | 20-3552316 | ||
| (State or other jurisdiction | (Commission File Number) | (IRS Employer | ||
| of incorporation) | Identification No.) | |||
| |
||||
| 1000 East Hanes Mill Road | 27105 | |||
| Winston-Salem, NC | (Zip Code) | |||
| (Address of principal | ||||
| executive offices) |
Registrant’s 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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 5.02.
|
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. | |
Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
|
Item 9.01
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Financial Statements and Exhibits. |
Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On September 25, 2007, Lee A. Chaden, Executive Chairman of Hanesbrands Inc. (“Hanesbrands”)
and a member of its Board of Directors, informed the Board of Directors that he will retire from
his position as Executive Chairman effective December 29, 2007. Mr. Chaden will continue to serve
as a member of the Board of Directors and as non-executive Chairman of the Board of Directors. The
press release issued by Hanesbrands regarding this announcement is furnished as Exhibit 99.1 and is
incorporated herein by reference.
Item 5.03
|
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On September 25, 2007, Hanesbrands’ Board of Directors adopted amendments to Hanesbrands’
Amended and Restated Bylaws (the “Bylaws”). The amendments change the timing of Hanesbrands’
annual meeting of stockholders and the deadline for stockholders to notify Hanesbrands of matters
to be brought before Hanesbrands’ first annual meeting of stockholders. The Board of Directors
determined that these changes were in the best interests of Hanesbrands as a result of its
previously announced change of fiscal year end from the Saturday closest to June 30 to the Saturday
closest to December 31.
With regard to the timing of Hanesbrands’ annual meeting of stockholders, the Board of
Directors amended Section 2 of Article II of the Bylaws to provide that the annual meeting of
stockholders shall be held during the month of April in each year, commencing in April 2008, at
such specific date and time set by the Board of Directors. Prior to the amendment, Section 2 of
Article II provided that such meeting would be held during the month of October in each year,
commencing in October 2007.
The Board of Directors made a conforming change to Section 11(a)(2) of Article II
of the Bylaws, which prescribes the process to be followed by stockholders who wish to bring
nominations or other business before an annual meeting of stockholders. To conform to the change
of the month in which the first annual meeting of stockholders will be held, the Board of Directors
amended Section 11(a)(2) to require that, to be timely, a stockholder notify Hanesbrands of a
matter to be brought before the first annual meeting no earlier than November 2, 2007 but no later
than 5:00 p.m., Eastern Time, on December 3, 2007.
The descriptions contained herein of the amendments to the Bylaws are qualified in their
entirety by reference to the full text of the Bylaws as restated to give effect to the foregoing
amendments, which are attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated
herein by reference.
Item 9.01
|
Financial Statements and Exhibits |
(c) Exhibits
Exhibit 3.1
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Amended and Restated Bylaws of Hanesbrands Inc. | |
Exhibit 99.1
|
Press release dated September 27, 2007 |
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.
September
27, 2007
|
HANESBRANDS INC. | |||
| By: | /s/ Joia M. Johnson | |||
| Joia M. Johnson Executive Vice President, General Counsel and Corporate Secretary |
Exhibits
3.1
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Amended and Restated Bylaws of Hanesbrands Inc. |
|
99.1
|
Press release dated September 27, 2007 |
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
a date and at the time set by the Board of Directors during the month of April in each year,
commencing April 2008.
Section 3. Special Meetings.
(a) General. The chairman of the board, president, chief executive officer or Board
of Directors may call special meetings of the stockholders. Subject to subsection (b) of this
Section 3, a special meeting of stockholders shall also be called by the secretary upon the written
request of stockholders entitled to cast not less than a majority of all the votes entitled to be
cast 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 that must be disclosed in solicitations of
proxies for election of directors in an election contest (even if an election contest is not
involved), or is otherwise required, 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, one or more written requests
for a special meeting 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 (the “Special Meeting Percentage”) of all of the votes entitled to be cast at such meeting
(the “Special Meeting Request”) shall be delivered to the secretary. In addition, the Special
Meeting Request (i) shall 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), (ii) shall bear the date of signature of each such stockholder
(or such agent) signing the Special Meeting Request, (iii) shall set forth the name and address, as
they appear in the Corporation’s books, of each stockholder signing such request (or on whose
behalf the Special Meeting Request is signed), the class, series and number of all shares of stock
of the Corporation which are owned by each such stockholder, and the nominee holder for, and number
of, shares owned by such stockholder beneficially but not of record, (iv) shall be sent to the
secretary by registered mail, return receipt requested, and (v) shall 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 mailing the notice of meeting (including the Corporation’s 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 from the requesting stockholders of such reasonably estimated
cost prior to the mailing of any notice of the meeting.
(4) Except as provided in the next sentence, any special meeting shall be held at such place,
date and time as may be designated by the chairman of the board, chief executive officer, president
or Board of Directors, whoever has called the meeting. 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
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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 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 within the good faith exercise of business
judgment, 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 requests for the special meeting 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, the secretary
shall: (i) if the notice of meeting has not already been mailed, refrain from mailing 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 mailed and if the secretary first sends to all requesting stockholders who have not revoked
requests for a special meeting written notice of any revocation of a request for the special
meeting and written notice of the secretary’s intention to revoke the notice of the meeting, revoke
the notice of the meeting at any time before ten days before the commencement of the meeting. 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 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 at least a majority of the issued and
outstanding shares of stock
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that would be entitled to vote at such meeting. 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 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 written or printed
notice 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, either by
mail, by presenting it to such stockholder personally, by leaving it at the stockholder’s 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 stockholder’s address as it appears on the records of the
Corporation, with postage thereon prepaid.
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.
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: the
vice chairman of the board, if there be 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 secretary’s 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 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 such chairman, are appropriate for the
proper conduct of the meeting, including, without limitation, (a) restricting admission to
4
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; and (h) concluding a meeting or recessing
or adjourning the meeting to a later date and time and place announced at the meeting. 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 shall have the power to 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 convened, 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
Corporation’s stock, regardless of class, shall be entitled to one vote on each matter submitted to
a vote at a meeting of stockholders.
Section 8. Proxies. A stockholder may cast the votes entitled to be cast by the shares of
stock owned of record by the stockholder in person or by proxy executed by the stockholder or by
the stockholder’s duly authorized agent in any manner permitted by law. Such proxy or evidence of
authorization of such proxy shall be filed with the secretary
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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 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 or closing of the stock transfer books, the time
after the record date or closing of the stock transfer books 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, in advance of any meeting, may, but need
not, appoint one or more individual inspectors or one or more entities that designate individuals
as inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are
not appointed, the person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made by the Board of Directors in advance of the meeting or at
the meeting by the chairman of the meeting. The inspectors, if any, shall determine the number of
shares outstanding and the voting power of each, the shares represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all stockholders. Each such report
shall be in writing and
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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.
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 Corporation’s 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 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 (1) of this Section 11(a), 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
stockholder’s 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 (x) with respect to
the 2008 annual meeting, not earlier than November 2, 2007 nor later than 5:00 p.m., Eastern Time,
on December 3, 2007, and (y) with respect to all other annual meetings, 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 mailing of the notice for the preceding year’s 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 year’s 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 stockholder’s notice as described above. Such stockholder’s notice
shall set forth (i) as to each individual whom the stockholder proposes to nominate for election or
reelection as a director, (A) the name, age, business address and residence address of such
individual, (B) the class, series and number of any shares of stock of the Corporation that are
beneficially owned by such individual, (C) the date such shares were acquired and the investment
intent of such acquisition and (D) all other information relating to such individual that is
required to be disclosed in solicitations of proxies for election of directors in an election
contest (even if an election contest is not involved), or is otherwise required, in each case
pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the rules
thereunder (including such individual’s written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to any other business
7
that the stockholder proposes to bring before the meeting, a description of such business, the
reasons for proposing such business at the meeting and any material interest in such business of
such stockholder and any Stockholder Associated Person (as defined below), individually or in the
aggregate, including any anticipated benefit to the stockholder and the Stockholder Associated
Person therefrom; (iii) as to the stockholder giving the notice and any Stockholder Associated
Person, the class, series and number of all shares of stock of the Corporation which are owned by
such stockholder and by such Stockholder Associated Person, if any, and the nominee holder for, and
number of, shares owned beneficially but not of record by such stockholder and by any such
Stockholder Associated Person; (iv) as to the stockholder giving the notice and any Stockholder
Associated Person covered by clauses (ii) or (iii) of this paragraph (2) of this Section 11(a), the
name and address of such stockholder, as they appear on the Corporation’s stock ledger and current
name and address, if different, and of 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 stockholder’s notice.
(3) Notwithstanding anything in this subsection (a) of this Section 11 to the contrary, in the
event the Board of Directors increases or decreases the maximum or minimum number of directors in
accordance with Article III, Section 2 of these Bylaws, and there is no public announcement of such
action at least 130 days prior to the first anniversary of the date of mailing of the notice of the
preceding year’s annual meeting, a stockholder’s 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.
(4) For purposes of this Section 11, “Stockholder Associated Person” of any stockholder shall
mean (i) any person controlling, controlled by, or under common control with, directly or
indirectly, such stockholder or 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 and (iii) any person controlling, controlled by or under common control with 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
Corporation’s 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 (i) pursuant
to the Corporation’s notice of meeting, (ii) by or at the direction of the Board of Directors or
(iii) provided that the Board of Directors has determined that directors shall be elected at such
special meeting, 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 and who 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
8
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 Corporation’s notice of meeting, if the
stockholder’s notice required by paragraph (2) of Section 11(a) of this Article II of these Bylaws
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 stockholder’s notice as described above.
(c) General. (1) Upon written request by the secretary or the Board of Directors or
any committee thereof, any stockholder proposing a nominee for election as a director or any
proposal for other business at a meeting of stockholders shall provide, within five Business Days
of delivery of such request (or such other period as may be specified in such request), written
verification, satisfactory, in the discretion of the Board of Directors or any committee thereof or
any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted
by the stockholder pursuant to this Section 11. If a stockholder fails to provide such written
verification within such period, the information as to which written verification 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) For purposes of this Section 11, (a) the “date of mailing of the notice” shall mean the
date of the proxy statement for the solicitation of proxies for election of directors and (b)
“public announcement” shall mean disclosure (i) in a press release reported by the Dow Jones News
Service, Associated Press, Business Wire, PR Newswire or comparable news 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, nor the right of the Corporation to omit a proposal from, the Corporation’s proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act.
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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.
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.
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
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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.
Section 5. Notice. Notice of any special meeting of the Board of Directors shall be
delivered personally or by telephone, electronic mail, facsimile transmission, United States mail
or courier 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 such 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 are present at said 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 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 convened may continue to
transact business until adjournment, notwithstanding the withdrawal of enough directors to leave
less than a quorum.
Section 7. Voting. The action of the 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 less than 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 vice chairman of
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the board, if any, shall act as chairman of the meeting. In the absence of both the chairman
and vice chairman of the board, 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, or in 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 all of the
members of the Board of Directors then in office consent thereto in writing or by electronic
transmission and such writing or writings or electronic transmission or transmissions are 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 (even if fewer than three directors remain). 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. Loss Of Deposits. No director shall be liable for any loss which may occur by
reason of the failure of the bank, trust company, savings and loan association, or other
institution with whom moneys or stock have been deposited.
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Section 14. Surety Bonds. Unless required by law, no director shall be obligated to give any
bond or surety or other security for the performance of any of his or her duties.
Section 15. Reliance. Each director, officer, employee and agent of the Corporation shall,
in the performance of his or her duties with respect to the Corporation, be fully justified and
protected with regard to any act or failure to act in reliance in good faith upon the books of
account or other records of the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the Corporation,
regardless of whether such counsel or expert may also be a director.
Section 16. Certain Rights of Directors, Officers, Employees and Agents. The directors shall
have no responsibility to devote their 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 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 17. Ratification. Any transaction questioned in any stockholders’ derivative
proceeding on the ground of lack of authority, defective or irregular execution, adverse interest
of director, officer or stockholder, non-disclosure, miscomputation, or the application of improper
principles or practices of accounting may be ratified before or after judgment, by the Board of
Directors (excluding any director who is a party to such proceeding) or by the stockholders if less
than a quorum of directors is qualified; and, if so ratified, shall have the same force and effect
as if the questioned transaction had been originally duly authorized, and said 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 transaction.
ARTICLE IV
COMMITTEES
Section 1. Number, Tenure And Qualifications. The Board of Directors may appoint from among
its members a Finance/Audit Committee, a Compensation and Benefits 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.
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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 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
all of the members of such committee of the Board of Directors consent thereto in writing or by
electronic transmission and such writing or writings or electronic transmission or transmissions
are 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 all vacancies, to
designate alternate members 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 hold office 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.
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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
giving written notice of 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 notice of 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.
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 set forth 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 set forth 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
15
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 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 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.
If required by the Board of Directors, the treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his or her office and for the restoration to the Corporation,
in case of his or her death, resignation, retirement or removal from office, of all books, papers,
vouchers, moneys and other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
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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. The assistant
treasurers shall, if required by the Board of Directors, give bonds for the faithful performance of
their duties in such sums and with such surety or sureties as shall be satisfactory to 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 Corporation’s 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. Salaries. The salaries and other compensation of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented from receiving such
salary or other compensation by reason of the fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors or a committee of the Board of Directors within
the scope of its delegated authority 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 or such committee 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
17
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
from time to time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
Section 1. Certificates. The Corporation may issue some or all of the shares of any or all
of the Corporation’s 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 and contain the
statements and information and be executed in the manner required 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 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 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 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
18
ceased to be certificated, no new certificate shall be issued unless requested in writing by
such stockholder and the Board of Directors has determined 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. Closing Of Transfer Books Or 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.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not longer than 20 days. If the stock transfer books
are closed for the purpose of determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such books shall be closed for at least ten days before the date of such
meeting.
Except as otherwise provided in Section 3(b)(4) of Article II, if no record date is fixed and
the stock transfer books are not closed 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 determination of stockholders entitled to vote at any meeting of stockholders has been
made as provided in this section, such determination shall apply to any adjournment thereof, except
when (i) the determination has been made through the closing of the transfer books and the stated
period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new record date shall 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
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or transfer agent, an original or duplicate share 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 to be in the best interest of the Corporation, and the Board of Directors
may modify or abolish any such reserve.
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.
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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 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
Lee’s 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 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 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
21
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 Party’s 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 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.
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.
22
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, signed by the person or persons entitled
to such notice, 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 September 25, 2007
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Exhibit 99.1
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, NC 27105
(336) 519-4400
1000 East Hanes Mill Road
Winston-Salem, NC 27105
(336) 519-4400
news release
FOR IMMEDIATE RELEASE |
||
News Media, contact:
|
Matt Hall, (336) 519-3386 | |
Analysts and Investors, contact:
|
Brian Lantz, (336) 519-7130 |
HANESBRANDS INC. EXECUTIVE LEE A. CHADEN TO RETIRE AT YEAR-END; HE WILL CONTINUE TO SERVE AS
HANESBRANDS CHAIRMAN OF THE BOARD
WINSTON-SALEM, N.C. (Sept. 27, 2007) — Hanesbrands Inc. (NYSE:HBI) announced today that Lee A.
Chaden will retire from the company on Dec. 29, 2007. Chaden, who has served as executive chairman
since April 2006, will serve as nonexecutive chairman of the board after his retirement.
Chaden, 65, joined the company in 1991 and served as chief executive officer from 2004 until his
appointment as executive chairman to help prepare the organization for its September 2006 spinoff
as an independent publicly traded company. His responsibilities included oversight of the creation
and recruitment of the board of directors.
“Lee Chaden has had a tremendous career at Hanesbrands and is one of the finest, most knowledgeable
and most respected executives in the apparel industry,” Hanesbrands Chief Executive Officer Richard
A. Noll said. “I had the extreme pleasure and honor of working side by side with Lee as we guided
Hanesbrands into independence and set the strategies for competitive success. Hanesbrands has
benefited greatly from Lee’s leadership, passion, grace and insight. Fortunately, Lee will remain
chairman of the Hanesbrands board of directors and will continue to help guide the company in that
role.”
Chaden joined the organization in 1991 when Sara Lee Corporation, which previously owned
Hanesbrands as an operating division, bought Playtex Apparel Inc. where Chaden served as president
of the company’s North American business. After leading Playtex to significant sales and profit
growth under Sara Lee ownership, Chaden held several leadership positions within the operating
divisions of Sara Lee, including CEO of the company’s European apparel business. Later, he held
corporatewide Sara Lee positions leading human resources and then global marketing and sales before
being appointed CEO of the branded apparel division for the Americas and Asia, which was spun off
as Hanesbrands.
Hanesbrands Inc. Executive Lee A. Chaden to Retire at Year-End;
He Will Continue To Serve As Hanesbrands Chairman Of The Board — Page 2
He Will Continue To Serve As Hanesbrands Chairman Of The Board — Page 2
“Two years ago we were given the phenomenal opportunity to chart our own course as an independent
company,” Chaden said. “Rich and I wanted to develop a focused business strategy designed for
long-term success, organize and staff our company to execute and take advantage of that strategy,
and ensure that this new company had the sound financial underpinnings required to grow and compete
from day one. I believe we have achieved those goals.
“The company is off to a great start, making significant progress against our key objectives. As
CEO, Rich has clearly demonstrated his exceptional business acumen and strong leadership skills.
He is supported by a highly talented management team and dedicated employees across the world, and
we have a highly engaged world-class board of directors. I am proud of this team’s
accomplishments, very grateful for having had the opportunity to work with them in birthing this
new company, and delighted that I will continue in a role that can contribute to the company’s
success.”
Hanesbrands Inc.
Hanesbrands Inc. is a leading marketer of innerwear, outerwear and hosiery apparel under strong
consumer brands, including Hanes, Champion, Playtex, Bali, Just My Size, barely there and
Wonderbra. The company designs, manufactures, sources and sells T-shirts, bras, panties, men’s
underwear, children’s underwear, socks, hosiery, casualwear and activewear. Hanesbrands has
approximately 50,000 employees in more than 25 countries. More information about the company may
be found on the Hanesbrands Internet Web site at http://www.hanesbrands.com.
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