EXHIBIT 9.1
VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
August 20, 2004, by and among The Xxxxxx Mondavi Corporation, a California
corporation (the "COMPANY") and Xxxxxx X. Mondavi, R. Michael Mondavi, Xxxxxxx
X. Mondavi and Xxxxxx Mondavi Xxxxxx (together, the "SHAREHOLDERS").
WHEREAS, R. Michael Mondavi, Xxxxxxx X. Mondavi and Xxxxxx Mondavi Xxxxxx
are directors of the Company and Xxxxxx X. Mondavi is the founder and Chairman
Emeritus of the Company and the father of R. Michael Mondavi, Xxxxxxx X. Mondavi
and Xxxxxx Mondavi Xxxxxx.
WHEREAS, each of the Shareholders beneficially owns that number of shares
of Class A Common Stock, no par value (the "CLASS A STOCK"), and Class B Common
Stock, no par value (the "CLASS B STOCK") and options to acquire shares of Class
A Stock (the "OPTIONS") set forth in Appendix A.
WHEREAS, as of July 31, 2004, the Company had issued and there were
outstanding: 10,678,399 shares of Class A Stock and 5,984,927 shares of Class B
Stock.
WHEREAS, pursuant to Section 310 of the General Corporation Law of the
State of California (the "CGCL"), the Board of Directors of the Company has
formed a special committee (the "SPECIAL COMMITTEE") consisting of four
independent directors, and the Special Committee has considered the Class A
Exchange Ratio and Class B Exchange Ratio (each as defined below) pursuant to
the proposed recapitalization of the Company (the "RECAPITALIZATION"), subject
to approval by the holders of a majority of the outstanding shares of Class A
Stock and the holders of at least 60% of the outstanding shares of Class B
Stock, whereby, pursuant to the Merger (defined below), (a) each share of Class
A Stock will be converted into one share, par value $0.001 per share (the "CLASS
A EXCHANGE Ratio") of common stock of The Xxxxxx Mondavi Corporation, a
wholly-owned subsidiary of the Company ("MONDAVI DELAWARE" or the "SURVIVING
CORPORATION") and (b) each share of Class B Stock will be converted into 1.165
shares, par value $0.001 per share (the "CLASS B EXCHANGE RATIO") of common
stock of Mondavi Delaware.
WHEREAS, the Special Committee has unanimously determined that the Class A
Exchange Ratio and the Class B Exchange Ratio (together, the "EXCHANGE RATIOS")
are just and reasonable in accordance with Section 310 of the CGCL, and in
connection therewith has received opinions from (a) Xxxxxx Xxxxxxx & Co.
Incorporated ("XXXXXX XXXXXXX") to the effect that, as of August 20, 2004, the
Class A Exchange Ratio is fair, from a financial point of view, to the holders
of Class A Stock (other than Class A holders who also hold shares of Class B
Stock) and (b) Evercore Group Inc. ("EVERCORE") to the effect that, as of August
20, 2004, the Class B Exchange Ratio is fair, from a financial point of view, to
the holders of Class B Stock; and the Special Committee has recommended that the
Board of Directors of the Company approve the Exchange Ratios.
WHEREAS, the Board of Directors of the Company has unanimously determined
that (a) the Exchange Ratios are just and reasonable and (b) the reincorporation
of the Company in Delaware, the Recapitalization to be effected pursuant to the
Agreement and Plan of Merger, in the form of Exhibit A attached hereto (the
"MERGER AGREEMENT"), and the merger of the Company with and into Mondavi
Delaware, pursuant to the Merger Agreement (the "MERGER"), are in the best
interest of the Company.
WHEREAS, the Board of Directors of the Company has unanimously approved
the Merger Agreement, has directed that the Merger Agreement be submitted to
holders of the Class A Stock (the "CLASS A SHAREHOLDERS") and holders of the
Class B Stock (the "CLASS B SHAREHOLDERS" and, together with the Class A
Shareholders, the "RMC SHAREHOLDERS") for their approval and has recommended
that the RMC Shareholders approve the Merger Agreement.
WHEREAS, under the Articles of Incorporation of the Company, the CGCL and
the Merger Agreement, such approval requires the affirmative vote of a majority
of the outstanding shares of Class A Stock and 60% of the outstanding shares of
Class B Stock.
WHEREAS, the Shareholders have (a) been advised by independent advisors in
connection with their consideration of the Recapitalization, the Exchange
Ratios, the Merger Agreement and this Agreement; (b) without reliance thereon,
been informed that Xxxxxx Xxxxxxx has delivered to the Special Committee an
opinion as to the fairness, from a financial point of view, of the Class A
Exchange Ratio to the holders of Class A Stock (other than Class A holders who
also hold shares of Class B Stock) and Evercore has delivered to the Special
Committee an opinion as to the fairness, from a financial point of view, of the
Class B Exchange Ratio to the holders of Class B Stock; and (c) had an
opportunity to ask questions of the Company's management, the Special Committee
and Evercore regarding this transaction.
WHEREAS, at the request of the Special Committee and the Board of
Directors of the Company, the Shareholders have agreed to (a) execute a written
consent in the form of Exhibit B, and (b) enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, the Company and each of the Shareholders (acting severally) agree as
follows:
ARTICLE 1
Representations and Warranties of the Company
In order to induce the Shareholders to enter into this Agreement, the
Company hereby represents and warrants to each Shareholder as follows:
SECTION 1.01. Corporate Power and Authority. Each of the Company and
Mondavi Delaware is duly organized, validly existing and in good standing under
the laws of the States of California and Delaware, respectively. The Company has
all requisite corporate power and authority to enter into and deliver this
Agreement and to perform its obligations hereunder and
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each of the Company and Mondavi Delaware has all requisite corporate power and
authority to consummate the transactions contemplated by this Agreement and the
Merger Agreement. The execution, delivery and performance of this Agreement by
the Company, and of the Merger Agreement by the Company and Mondavi Delaware,
have been duly authorized by all necessary corporate action on the part of the
Company and Mondavi Delaware, as the case may be, subject to receipt of the
requisite approval of the Merger Agreement and the Merger by the holders of a
majority of the outstanding shares of Class A Stock and the holders of at least
60% of the outstanding shares of Class B Stock. This Agreement has been duly
executed and delivered by the Company and (assuming due authorization, execution
and delivery by each Shareholder) constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms subject to (a) applicable bankruptcy, insolvency, fraudulent conveyance
and other similar laws and (b) general principles of equity, including equitable
defenses and limits as to the availability of equitable remedies, whether such
principles are considered in a proceeding at law or in equity.
SECTION 1.02. No Conflict; Required Filings And Consents. (a) The
execution and delivery of this Agreement by the Company does not, and the
performance of this Agreement and the Merger Agreement by the Company and
Mondavi Delaware, as the case may be, will not, (i) conflict with or violate the
Company's Amended and Restated Articles of Incorporation or its Restated Bylaws,
(ii) conflict with or violate Mondavi Delaware's Certificate of Incorporation or
its Bylaws or (iii) conflict with or violate any order, judgment or decree
applicable to the Company or Mondavi Delaware or by which the Company or Mondavi
Delaware is bound or affected.
(b) Other than required filings with the states of California and
Delaware of the Merger Agreement, required filings with the Securities and
Exchange Commission, the approval by Nasdaq of the shares of common stock issued
by Mondavi Delaware for trading, and filings which may be required pursuant to
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended ("HSR
FILINGS"), which HSR Filings do not appear to be required at this time, the
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement and the Merger Agreement by the Company and
Mondavi Delaware, as the case may be, will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, domestic or foreign, except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay the performance by the
Company of the Company's obligations under this Agreement or the Merger
Agreement.
ARTICLE 2
Representations and Warranties of the Shareholders
In order to induce the Company to enter into this Agreement, each
Shareholder represents and warrants (with respect to itself only, and except in
each case as set forth on Appendix A) to the Company as follows:
SECTION 2.01. Title to Shares. Except as set forth in Appendix A, such
Shareholder beneficially owns and has the power to vote that number of shares of
Class A Stock and Class B
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Stock as set forth on Appendix A attached hereto, and such Shareholder has good
title, free and clear of all liens, claims, security interests, pledges, charges
and other encumbrances (collectively, "ENCUMBRANCES"), to all its shares of
Class A Stock and Class B Stock. Such Shareholder beneficially owns that number
of Options set forth on Appendix A and, upon exercise of any of such Options in
accordance with their terms, will beneficially own all shares acquired upon
exercise of such Options.
SECTION 2.02. Required Consents; Authority. Except as set forth with
respect to Xxxxxx X. Mondavi in Appendix A, such Shareholder has full right,
power and authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by such Shareholder and
(assuming due authorization, execution and delivery by the Company) constitutes
the legal, valid and binding obligation of such Shareholder enforceable against
such Shareholder in accordance with its terms subject to (a) applicable
bankruptcy, insolvency, fraudulent conveyance and other similar laws and (b)
general principles of equity, including equitable defenses and limits as to the
availability of equitable remedies, whether such principles are considered in a
proceeding at law or in equity.
SECTION 2.03. Written Consent. Such Shareholder has delivered to the
Company a written consent in the form of Exhibit B attached hereto.
SECTION 2.04. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by such Shareholder does not, and the
performance of this Agreement by such Shareholder will not, (i) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to such
Shareholder or by which it or such Shareholder's properties is bound or
affected, or (ii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to another party any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on the
shares of Class A Stock, Class B Stock and Options owned by such Shareholder
pursuant to any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Shareholder is a party or by which such Shareholder or such Shareholder's
properties or assets is bound or affected. There is no beneficiary or holder of
a proxy, voting agreement, voting trust certificate or other interest of any
trust of which such Shareholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such Shareholder
of the transactions contemplated by this Agreement, which has not been obtained
or which would not prevent or materially delay the performance by such
Shareholder of the Shareholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay the performance by such Shareholder of the Shareholder's
obligations under this Agreement.
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ARTICLE 3
Covenants of the Company
In order to induce the Shareholders to enter into this Agreement, the
Company covenants as follows:
SECTION 3.01. Shareholders' Meeting. The Company shall use its reasonable
best efforts to consummate the Merger as promptly as practicable, and to that
end to call, hold and convene a meeting of the RMC Shareholders (the "RMC
SHAREHOLDERS' MEETING") on October 29, 2004, or as promptly thereafter as
practicable, for the purpose of seeking approval of the Merger Agreement and the
Merger, and the Board of Directors of the Company shall recommend approval of
the Merger Agreement and the Merger; provided, however, that nothing in this
Section 3.01 shall preclude the Board of Directors of the Company from modifying
or withdrawing its recommendation of the Merger Agreement or the Merger if it
determines that it is required to do so to comply with its fiduciary obligations
to the Company and its shareholders under applicable law. If and upon obtaining
such approval, the Company shall cause the Merger and Recapitalization to be
effected as promptly as practicable thereafter.
SECTION 3.02. Registration Statement; Proxy Materials. The Company shall
prepare and file as soon as practicable a registration statement on Form S-4
relating to the issuance of shares pursuant to the Merger which shall include
the proxy statement relating to the RMC Shareholders' Meeting. Such registration
statement shall comply as to form in all material respects with the Securities
Act of 1933 and the Securities Exchange Act of 1934, respectively. If, at any
time prior to the effective date of the Merger, the Company discovers any
information that should be set forth in an amendment or supplement to the
registration statement, so that such document would not include any misstatement
of a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, the Company shall promptly notify the Shareholders and an
appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law or regulation,
disseminated to the shareholders of the Company. The proxy statement shall
include the recommendations of the Special Committee and the Board of Directors
of the Company to the holders of Class A Stock and Class B Stock that they vote
in favor of the Merger Agreement and the Merger; provided, however, that nothing
in this Section 3.02 shall preclude the Special Committee or the Board of
Directors of the Company from modifying or withdrawing its recommendation of the
Merger Agreement or the Merger if it determines that it is required to do so to
comply with its fiduciary obligations to the Company and its shareholders under
applicable law. The Company shall seek to have the registration statement
declared effective as promptly as practicable and the Company shall promptly
thereafter mail the proxy statement to its shareholders, all in compliance with
applicable law.
SECTION 3.03 Listing of Shares of Common Stock. The Company will use its
reasonable best efforts to cause the shares of common stock issued by Mondavi
Delaware in the Merger to be listed for trading on Nasdaq, subject to official
notice of issuance, prior to the effective time of the Merger.
SECTION 3.04. Director And Officer Liability. The Company shall cause the
Surviving Corporation to do the following:
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(a) The Surviving Corporation shall indemnify and hold harmless the
present and former officers and directors of the Company (each an "INDEMNIFIED
PERSON") in respect of acts or omissions occurring at or prior to the effective
date of the Merger to the fullest extent permitted by Delaware Law.
(b) For six years after the effective date of the Merger, the Surviving
Corporation shall provide officers' and directors' liability insurance in
respect of acts or omissions occurring prior to the effective date of the Merger
covering each such Indemnified Person currently covered by the Company officers'
and directors' liability insurance policy on terms with respect to coverage and
amount no less favorable in the aggregate than those of such policy in effect on
the date hereof; provided that, in satisfying its obligation under this Section
3.04, the Surviving Corporation shall not be obligated to pay premiums in excess
of 200% of the amount per annum the Company paid in its last full fiscal year.
SECTION 3.05. No Amendment of Mondavi Delaware Certificate of
Incorporation or By-laws or the Merger Agreement. The Company will not take any
action to cause the amendment of, and will not permit Mondavi Delaware to amend,
the Certificate of Incorporation of Mondavi Delaware in the form attached hereto
as Exhibit C or the By-laws of Mondavi Delaware in the form attached hereto as
Exhibit D prior to the effectiveness of the Merger without the consent of those
Shareholders holding a majority of the shares of the Class B Stock owned by the
Shareholders (as reflected in Appendix A hereto), which consent shall not be
unreasonably withheld. The Company will not amend or abandon the Merger
Agreement in the form attached hereto as Exhibit A prior to effectiveness of the
Merger without the consent of each Shareholder, which consent shall not be
unreasonably withheld.
ARTICLE 4
Covenants of the Shareholders
In order to induce the Company to enter into this Agreement, each
Shareholder severally covenants as follows:
SECTION 4.01. Voting; Transfer; Irrevocable Proxy. Each Shareholder agrees
to vote all shares of Class A Stock and Class B Stock beneficially owned by him
or her, including any shares of Class A Stock or Class B Stock he or she may
subsequently acquire, whether by purchase, exercise of options or otherwise
(collectively, the "RMC SHARES") (a) with respect to the Class A Stock, in favor
of the Merger Agreement and the Merger in the same proportion as Class A
Shareholders who are not the Shareholders vote in favor of the Merger Agreement
and the Merger, and (b) with respect to the Class B Stock, in favor of the
Merger Agreement and the Merger, at the RMC Shareholders' Meeting (and at every
adjournment thereof) and not to knowingly cause or encourage any other person or
entity to vote against the Merger Agreement or the Merger. Without the prior
written consent of the Company, each Shareholder shall not, directly or
indirectly, prior to the receipt by the Company of the approval of the Merger by
the requisite vote of its Class A Shareholders and Class B Shareholders, (i)
grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any RMC Shares or (ii) sell, convert,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect
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sale, conversion, assignment, transfer, Encumbrance or other disposition of, any
RMC Shares during the term of this Agreement or solicit or encourage any such
transaction or a proposal or offer for any such transaction. Notwithstanding the
preceding sentence, each Shareholder may, without the prior written consent of
the Company, (A) pledge or otherwise encumber any of his or her RMC Shares so
long as the party to whom such RMC Shares are pledged or by whom such RMC Shares
are encumbered (such pledged or encumbered shares the "PLEDGED RMC SHARES")
shall (w) agree in writing pursuant to an assumption agreement reasonably
satisfactory to the Company to comply with all provisions of this Section 4.01
as fully as if such party had been an original signatory to this Agreement (an
"ASSUMPTION AGREEMENT"), with respect to the Pledged RMC Shares, and (x) provide
an opinion of counsel reasonably satisfactory to the Company to the effect that
such Assumption Agreement is a legal, valid and binding agreement with respect
to such party; (B) provided such transfer can be made in compliance with
applicable federal securities laws, transfer any of the RMC Shares (such
transferred shares the "TRANSFERRED RMC SHARES") to any person or entity that
(i) was a shareholder of the Company as of February 26, 1993, (ii) is a direct
lineal descendant of Xxxxxx Mondavi, including adopted persons (if adopted
during their minority) and persons born out of wedlock, and excluding xxxxxx
children and stepchildren; or (iii) is a trust under which any of the persons
described in clauses (i) or (ii) above is a beneficiary; provided, that such
transferee executes an Assumption Agreement reasonably satisfactory to the
Company with respect to the Transferred RMC Shares (which Assumption Agreement
shall acknowledge the validity and effectiveness of the proxy granted
hereunder); and (C) transfer any of the RMC Shares by operation of law upon
death or through intestacy (with the transferee executing, to the extent
practicable, as a condition to such transfer, an Assumption Agreement). Nothing
in this Section 4.01 (other than clause C) shall entitle any Shareholder or
permitted transferee to convert any shares of Class B Stock into Class A Stock
prior to the effectiveness of the Merger without the prior written consent of
the Company. If and to the extent that the written consent in the form of
Exhibit B is invalid or revoked, each of the Shareholders hereby grants to the
Company an irrevocable proxy, coupled with an interest, to vote, in accordance
with the first sentence of this Section 4.01, each of the RMC Shares at every
annual, special or adjourned meeting of the RMC Shareholders (including the
right to execute an action by written consent), and hereby appoints and
constitutes the Company its true and lawful attorney-in-fact and agent, with
respect to such matters, with full power of substitution and resubstitution.
SECTION 4.02. Further Assurances. The Shareholders shall perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in the Company the power to carry out the
provisions of this Agreement.
ARTICLE 5
Termination
SECTION 5.01. Bases For Termination. Anything contained herein to the
contrary notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the effective date of the
Merger:
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(a) by mutual written consent of the Company (which consent shall have
been approved by a majority of the then members of the Special Committee) and
each of the Shareholders;
(b) by the Company or by any Shareholder on behalf of such Shareholder
if holders of at least a majority of the outstanding shares of Class A Stock do
not vote in favor of the Merger or the Merger Agreement at the RMC Shareholder's
Meeting; or
(c) by the Company or by any Shareholder on behalf of such Shareholder if the
effective date of the Merger does not occur on or prior to March 31, 2005;
provided, however, that the right to terminate this Agreement pursuant to clause
(b) or (c) shall not be available to any party whose material breach of any of
its representations, warranties, covenants or agreements contained in this
Agreement has been the principal cause of the failure of such vote to be
obtained or the failure of the effective date to occur on or before such date.
SECTION 5.02 . Notice of Termination. In the event of termination by the
Company or the Shareholders pursuant to this Article 5, written notice thereof
shall forthwith be given to the other party or parties and the transactions
contemplated by this Agreement shall be terminated, without further action by
any party.
SECTION 5.03 . Effect of Termination. If this Agreement is terminated as
described in this Article 5, this Agreement, the proxies granted herein and the
Action by the Written Consent of the Shareholders dated August 10, 2004 shall
become void and of no further force and effect. Nothing in this Article 5 shall
be deemed to release any party from any liability for any breach by such party
of the terms and provisions of this Agreement prior to termination of this
Agreement.
ARTICLE 6
Miscellaneous
SECTION 6.01. Counterparts. This Agreement may be executed in any number
of counterparts, which together shall constitute one and the same Agreement. The
parties may execute more than one copy of the Agreement, each of which shall
constitute an original.
SECTION 6.02. Entire Agreement. This Agreement (including the appendices
and exhibits attached hereto) constitutes the entire agreement among the parties
and supersedes all prior agreements, understandings, arrangements or
representations by or among the parties, written and oral, with respect to the
subject matter hereof.
SECTION 6.03. Third Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended or shall be construed to create any third party
beneficiaries, other than Section 3.04 hereof which is intended to benefit the
Shareholders in their respective capacities as officers and/or directors
(present or former) of the Company.
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SECTION 6.04. Governing Law; Jurisdiction. This Agreement shall be
governed by the laws of the State of California, without giving effect to the
conflict of laws principles thereof. Each party irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of
California and of the United States of America, in each case located in the
State of California, for any action or proceeding arising out of or relating to
this Agreement and the transactions contemplated by this Agreement (and agrees
not to commence any action except in any such court). Each party irrevocably and
unconditionally waives any objection to the laying of venue of any action or
proceeding in the courts of the State of California or of the United States of
America, in each case located in the State of California, and further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any action or proceeding brought in any such court has been
brought in an inconvenient forum. Each party irrevocably and unconditionally
waives any right it may have to a trial by jury in connection with any action or
proceeding arising out of or relating to this Agreement and the transactions
contemplated by this Agreement.
SECTION 6.05. Specific Performance. The transactions contemplated by this
Agreement are unique. Accordingly, each of the parties acknowledges and agrees
that, in addition to all other remedies to which it may be entitled, each of the
parties hereto is entitled to a decree of specific performance and injunctive
and other equitable relief.
SECTION 6.06. Amendment. This Agreement may not be altered, amended or
supplemented except by an agreement in writing signed by each of the parties
hereto and, in the case of the Company, approved by a majority of the members of
the Special Committee as constituted from time to time.
SECTION 6.07. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by facsimile, by courier service or by registered or certified mail
(postage prepaid, return receipt, requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 6.07):
If to Xxxxxx X. Mondavi, to:
Xxxxxx X. Mondavi
The Xxxxxx Mondavi Corporation
000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
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If to R. Michael Mondavi, to:
R. Michael Mondavi
The Xxxxxx Mondavi Corporation
000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
If to Xxxxxxx X. Mondavi, to:
Xxxxxxx X. Mondavi
Xxxxxx Mondavi Winery
0000 Xx. Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Xxxxxx Mondavi Xxxxxx, to:
Xxxxxx Mondavi Xxxxxx
000 Xxxx Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Satterlee, Stevens, Xxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
If to the Company, to:
The Xxxxxx Mondavi Corporation
0000 Xx. Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxx Xxxx & Xxxxxxxx
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Shearman & Sterling LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
SECTION 6.08. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(except with respect to any of the Shareholders, by operation of law upon death
or through intestacy) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties and their respective
successors, assigns, executors, heirs or trustees.
SECTION 6.09. Fees and Expenses. Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated by this Agreement shall be the responsibility of
and shall be paid by the party incurring such fees or expenses, whether or not
the transactions contemplated by this Agreement are consummated.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be executed by its officer thereunto duly authorized
as of the date first written above.
Xxxxxx X. Mondavi
/s/ Xxxxxx X. Mondavi
----------------------------------------
R. Michael Mondavi
/s/ R. Michael Mondavi
----------------------------------------
Xxxxxxx X. Mondavi
/s/ Xxxxxxx X. Mondavi
----------------------------------------
Xxxxxx Mondavi Xxxxxx
/s/ Xxxxxx Mondavi Xxxxxx
----------------------------------------
THE XXXXXX MONDAVI CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
----------------------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
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APPENDIX A
The following disclosures shall qualify the covenants contained in Section 4.01
of this Agreement:
Xxxxxx X. Mondavi and the Mondavi Living Trust of which Mr. Mondavi is the
sole trustee (collectively "Mondavi") beneficially owns 45,099 shares of Class A
Stock of the Company and 1,224,524 shares of Class B Stock of the Company
(constituting approximately 20.46% of the outstanding Class B Stock, and of the
Class B Shares, 885,951 are currently held in escrow at BNY Western Trust
Company to support Mondavi's pledge agreement to the American Center for Wine,
Food and the Arts, which pledge has been satisfied in full; the third party
beneficiary of such pledge has not yet signed the requested documents to release
such shares from escrow, although it is expected they will do so shortly.
Additionally, of the shares of Class B Stock registered in Mondavi's name,
150,000 shares have been loaned to Mondavi by his three children, 50,000 shares
each. Xxxxxx X. Mondavi has power to vote all of such 45,099 shares of Class A
Stock and 1,224,524 shares of Class B Stock.
R. Michael Mondavi beneficially owns 77,300 shares of Class A Stock,
1,078,787 shares of Class B Stock (constituting approximately 18.03% of the
outstanding Class B Stock) (which number of Class B Shares excludes shares for
which R. Michael Mondavi has disclaimed beneficial ownership), 5,000 restricted
stock units to be issued as shares of Class A Stock and options to acquire
371,805 shares of Class A Stock. Of the shares of Class B Stock, approximately
675,000 are pledged as collateral for certain margin loan arrangements. R.
Michael Mondavi has power to vote all of such 77,300 shares of Class A Stock and
1,078,787 shares of Class B Stock.
Xxxxxxx X. Mondavi beneficially owns no shares of Class A Stock,
665,983 shares of Class B Stock (constituting approximately 11.13% of the
outstanding Class B Stock) (which number of Class B Shares excludes shares for
which Xxxxxxx X. Mondavi has disclaimed beneficial ownership), 1,500 restricted
stock units to be issued as shares of Class A Stock and options to acquire
207,394 shares of Class A Stock. Of the shares of Class B Stock, approximately
450,000 are pledged as collateral for certain margin loan arrangements. Xxxxxxx
X. Mondavi has power to vote all of such 665,983 shares of Class B Stock.
Xxxxxx Mondavi Xxxxxx beneficially owns no shares of Class A Stock,
1,575,517 shares of Class B Stock (constituting approximately 26.32% of the
outstanding Class B Stock) (which number of Class B Shares excludes shares for
which Xxxxxx Mondavi Xxxxxx has disclaimed beneficial ownership) and options to
acquire 18,500 shares of Class A Stock.
13
EXHIBIT A
AGREEMENT AND PLAN OF MERGER OF
THE XXXXXX MONDAVI CORPORATION
(A DELAWARE CORPORATION)
AND
THE XXXXXX MONDAVI CORPORATION
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of August 20, 2004 (the
"Agreement") is between The Xxxxxx Mondavi Corporation, a Delaware corporation
("Mondavi Delaware") and The Xxxxxx Mondavi Corporation, a California
corporation ("Mondavi California"). Mondavi Delaware and Mondavi California are
sometimes referred to herein as the "Constituent Corporations".
RECITALS
A. Mondavi Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 105,000,000
shares, 100,000,000 of which are designated "Common Stock," par value $0.001 per
share (the "Mondavi Delaware Common Stock"), and 5,000,000 of which are
designated "Preferred Stock," par value $0.001 per share (the "Mondavi Delaware
Preferred Stock"). The Mondavi Delaware Preferred Stock is undesignated as to
series, rights, preferences, privileges or restrictions. As of the date hereof,
100 shares of Mondavi Delaware Common Stock are issued and outstanding, all of
which are held by Mondavi California, and no shares of Mondavi Delaware
Preferred Stock are issued and outstanding;
B. Mondavi California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 42,000,000
shares, 25,000,000 of which are designated "Class A Common Stock," no par value
per share (the "Class A Stock"), 12,000,000 of which are designated "Class B
Common Stock," no par value per share (the "Class B Stock"), and 5,000,000 of
which are designated "Preferred Stock," no par value per share (the "Preferred
Stock"). The Preferred Stock is undesignated as to series, rights, preferences,
privileges or restrictions. As of July 31, 2004, 10,678,399 shares of Class A
Stock, 5,984,927 shares of Class B Stock and no shares of Preferred Stock were
issued and outstanding;
C. Pursuant to this Agreement, the parties hereto desire to merge Mondavi
California with and into Mondavi Delaware with Mondavi Delaware surviving (the
"Merger");
D. Pursuant to the Merger, among other things, each share of Class B Stock
outstanding immediately prior to the Merger will be converted into 1.165 shares
of Mondavi Delaware Common Stock and each share of Class A Stock outstanding
immediately prior to the Merger will be converted into one share of Mondavi
Delaware Common Stock;
E. The respective Boards of Directors of Mondavi California and Mondavi
Delaware have determined that the Merger, in the manner contemplated herein, is
advisable and in the best interests of their respective corporations and
stockholders, and, by resolutions duly adopted, have approved and adopted this
Agreement and the Merger; and
F. Mondavi California and Xxxxxx X. Mondavi, R. Michael Mondavi, Xxxxxxx X.
Mondavi and Xxxxxx Mondavi Xxxxxx (together, the "Mondavi Class B Holders") have
entered into a Voting Agreement, dated August 20, 2004 (the "Voting Agreement"),
providing that, among other things, the Mondavi Class B Holders will vote their
shares of (i) Class A Stock in favor of this Agreement and the Merger in the
same proportion as holders of Class A Stock who are not the Mondavi Class B
Holders vote in favor of the Merger Agreement and the Merger and (ii) Class B
Stock in favor of this Agreement and the Merger.
A-1
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Mondavi Delaware and Mondavi California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
ARTICLE 1
MERGER
SECTION 1.01. Merger. In accordance with the provisions of this
Agreement, the Delaware General Corporation Law and the California Corporations
Code, Mondavi California shall be merged with and into Mondavi Delaware, the
separate existence of Mondavi California shall cease and Mondavi Delaware shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware. Mondavi Delaware shall be, and is herein sometimes referred to as, the
"Surviving Corporation". The name of the Surviving Corporation shall be The
Xxxxxx Mondavi Corporation.
SECTION 1.02. Filing and Effectiveness. The Merger shall become effective
when the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and approved
by the stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
Corporations Code;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation
Law shall have been filed with the Secretary of State of the State of
Delaware; and
(d) Executed Articles of Merger or an executed counterpart of this
Agreement meeting the requirements of the California Corporations Code
shall have been filed with the Secretary of State of the State of
California.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger".
SECTION 1.03. Effect of the Merger. Upon the Effective Date of the
Merger, the separate existence of Mondavi California shall cease and Mondavi
Delaware, as the Surviving Corporation, (i) shall continue to possess all of its
assets, rights, powers and property as constituted immediately prior to the
Effective Date of the Merger, (ii) shall be subject to all actions previously
taken by its and Mondavi California's Board of Directors, (iii) shall succeed,
without other transfer, to all of the assets, rights, powers and property of
Mondavi California in the manner more fully set forth in Section 259 of the
Delaware General Corporation Law, (iv) shall continue to be subject to all of
the debts, liabilities and obligations of Mondavi Delaware as constituted
immediately prior to the Effective Date of the Merger and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
Mondavi California in the same manner as if Mondavi Delaware had itself incurred
them, all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the California Corporations Code.
ARTICLE 2
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
SECTION 2.01. Certificate of Incorporation. The Certificate of
Incorporation of Mondavi Delaware as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
A-2
SECTION 2.02. Bylaws. The Bylaws of Mondavi Delaware as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Bylaws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
SECTION 2.03. Directors and Officers. The directors and officers of
Mondavi California immediately prior to the Effective Date of the Merger shall
be the directors and officers of the Surviving Corporation until their
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERSION OF STOCK
SECTION 3.01. Mondavi California Common Stock. Upon the Effective Date of
the Merger, (i) each share of Class A Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted into and exchanged for one fully paid and nonassessable share of
Mondavi Delaware Common Stock and (ii) each share of Class B Stock issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be converted into 1.165 fully paid and nonassessable shares of
Mondavi Delaware Common Stock; provided that no fractional shares shall be
issued to any holder and that instead of issuing such fractional shares, the
Surviving Corporation shall arrange for the disposition of fractional interests
by those entitled thereto by the mechanism of having (1) the transfer agent or
other agent of the Surviving Corporation aggregate such fractional interests,
(2) the shares resulting from the aggregation sold and (3) the net proceeds
received from the sale allocated and distributed among the holders of the
fractional interests as their respective interests appear.
SECTION 3.02. Mondavi California Options, Stock Purchase Rights and
Restricted Stock Units.
(a) Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue the stock option plans and all other employee benefit plans
of Mondavi California. Each outstanding and unexercised option to purchase Class
A Stock shall become an option to purchase, and each restricted stock unit shall
become a right to receive, Mondavi Delaware Common Stock on the basis of one
share of Mondavi Delaware Common Stock for each share of Class A Stock issuable
pursuant to any such option or restricted stock unit, on the same terms and
conditions and at an exercise price per share equal to the exercise price
applicable to any such Mondavi California option or restricted stock unit at the
Effective Date of the Merger. There are no options, purchase rights for or
securities convertible into Class B Stock or Preferred Stock of Mondavi
California.
(b) A number of shares of Mondavi Delaware Common Stock shall be reserved
for issuance upon the exercise of options or conversion of restricted stock
units equal to the number of shares of Class A Stock so reserved immediately
prior to the Effective Date of the Merger.
SECTION 3.03. Mondavi Delaware Common Stock. Upon the Effective Date of
the Merger, each share of Mondavi Delaware Common Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by Mondavi Delaware, the holder of such shares or any other person, be canceled
and returned to the status of authorized but unissued shares.
SECTION 3.04. Exchange of Certificates. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of Mondavi
California Common Stock may, at such stockholder's option, surrender the same
for cancellation to Mellon Investor Services as exchange agent (the "Exchange
Agent"), and each such holder shall be entitled to receive in exchange therefor
a certificate or certificates representing the number of shares of Mondavi
Delaware Common Stock into which the surrendered shares were converted as herein
provided. Unless and until so surrendered, each outstanding certificate
theretofore representing shares of Mondavi California Common Stock shall be
deemed for all purposes to represent the
A-3
number of shares of Mondavi Delaware Common Stock into which such shares of
Mondavi California Common Stock were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Mondavi Delaware Common Stock so issued in
the Merger shall bear the same legends, if any, with respect to the restrictions
on transferability as the certificates of Mondavi California so converted and
given in exchange therefore, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws, or
other such additional legends as agreed upon by the holder and the Surviving
Corporation.
If any certificate for shares of Mondavi Delaware Common Stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
the Surviving Corporation or the Exchange Agent any transfer or other taxes
payable by reason of issuance of such new certificate in a name other than that
of the registered holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is not
payable.
ARTICLE 4
CONDITIONS TO THE MERGER
SECTION 4.01. Conditions to the Obligations of Each Constituent
Corporation. The obligations of each Constituent Corporation to consummate the
Merger are subject to the satisfaction of the following conditions:
(a) Stockholder Approval. This Agreement and the Merger shall have
been adopted and approved by the holders of at least a majority of the
outstanding shares of Class A Stock, and by holders of at least 60% of the
outstanding shares of Class B Stock.
(b) Registration Statement. The registration statement on Form S-4 to
be filed in connection with the registration under the Securities Act of
1933 of the Mondavi Delaware Common Stock and containing the proxy
statement to be sent to the stockholders of Mondavi California, in
connection with their approval and adoption of this Agreement and the
Merger, shall have been declared effective by the SEC and no stop order
suspending the effectiveness of such registration statement shall have been
issued by the SEC and no proceeding for that purpose shall have been
initiated by the SEC.
(c) Nasdaq Quotation. The shares of Mondavi Delaware Common Stock to
be exchanged in the Merger shall have been authorized for quotation on
Nasdaq, subject to official notice of issuance.
(d) HSR Filings. Any filings which may be required pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended ("HSR
Filings") shall be made and, if HSR Filings are required, the waiting
periods (or any extension thereof) applicable to the Merger under the HSR
Act shall have been terminated or shall have expired.
A-4
ARTICLE 5
GENERAL
SECTION 5.01. Covenants of Mondavi Delaware. Mondavi Delaware covenants
and agrees that it will, on or before the Effective Date of the Merger:
(a) qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law;
(b) file any and all documents with the California Franchise Tax Board
necessary for the assumption by Mondavi Delaware of all of the franchise
tax liabilities of Mondavi California; and
(c) take such other actions as may be required by the California
General Corporation Law.
SECTION 5.02. Further Assurances. From time to time, as and when required
by Mondavi Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Mondavi California such deeds and other instruments, and
there shall be taken or caused to be taken by Mondavi Delaware and Mondavi
California such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by Mondavi
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Mondavi
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Mondavi Delaware are fully authorized in the name and
on behalf of Mondavi California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
SECTION 5.03. Abandonment. At any time before the Effective Date of the
Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Mondavi California or of
Mondavi Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of Mondavi California or by the sole stockholder of Mondavi
Delaware, or by both, provided, however, that any abandonment shall require the
approval of (i) the special committee of the board of directors of Mondavi
California and (ii) such approvals of the Mondavi Class B Holders as shall be
required pursuant to the Voting Agreement.
SECTION 5.04. Amendment. This Agreement may not be altered, amended or
supplemented except by an agreement in writing (i) signed by each of the parties
hereto and by each of the Mondavi Class B Holders and (ii) approved by directors
of the Constituent Corporations who are unaffiliated with the Mondavi Class B
Holders, which agreement and approval are made at any time prior to the filing
of this Agreement (or certificate in lieu thereof) with the Secretaries of State
of the States of Delaware and California, provided that an amendment made
subsequent to the adoption of this Agreement by the stockholders of either
Constituent Corporation shall not: (a) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange for
or on conversion of all or any of the shares of any class or series thereof of
such Constituent Corporation; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (c)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of any Constituent Corporation.
SECTION 5.05. Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, County of New Castle and The Corporation Trust Company is the registered
agent of the Surviving Corporation at such address.
SECTION 5.06. Agreement. Executed copies of this Agreement will be on
file at the principal place of business of the Surviving Corporation at 0000 Xx.
Xxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 and copies thereof will be furnished
to any stockholder of either Constituent Corporation, upon request and without
cost.
SECTION 5.07. Governing Law. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the laws
of the State of Delaware and, so far as applicable, the merger provisions of the
California Corporations Code.
A-5
SECTION 5.08. Counterparts. In order to facilitate the filing and
recording of this Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Mondavi Delaware Corporation, a
Delaware corporation, and The Xxxxxx Mondavi Corporation, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
Mondavi Delaware Corporation
a Delaware corporation
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Director
ATTEST:
/s/ Xxxxx X. Xxxxx Xx.
--------------------------------------
Name: Xxxxx X. Xxxxx Xx.
Title: EVP CFO
The Xxxxxx Mondavi Corporation
a California corporation
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Senior V.P.
ATTEST:
/s/ Xxxxx X. Xxxxx Xx.
--------------------------------------
Name: Xxxxx X. Xxxxx Xx.
Title: EVP CFO
A-6
EXHIBIT B
CERTIFICATE OF INCORPORATION
OF
THE XXXXXX MONDAVI CORPORATION
* * * * *
First: The name of the Corporation is The Xxxxxx Mondavi Corporation.
Second: The address of its registered office in the State of Delaware is
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, Xxxxxxxx 00000. The name of its registered agent at such address is The
Corporation Trust Company.
Third: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
Fourth: The total number of shares of stock that the Corporation shall
have authority to issue is 105,000,000, consisting of 100,000,000 shares of
Common Stock, par value $0.001 per share (the "Common Stock"), and 5,000,000
shares of Preferred Stock, par value $0.001 per share (the "Preferred Stock").
The Board of Directors is hereby empowered to authorize by resolution or
resolutions from time to time, without stockholder action, the issuance of one
or more classes or series of Preferred Stock and to fix the designations,
powers, preferences and relative, participating, optional or other rights, if
any, and the qualifications, limitations or restrictions thereof, if any, with
respect to each such class or series of Preferred Stock and the number of shares
constituting each such class or series, and to increase or decrease the number
of shares of any such class or series to the extent permitted by Delaware Law.
Fifth. Each holder of Common Stock, as such, shall be entitled to one vote
for each share of Common Stock held of record by such holder on all matters on
which stockholders generally are entitled to vote; provided, however, that,
except as otherwise required by law, holders of Common Stock, as such, shall not
be entitled to vote on any amendment to this Certificate of Incorporation
(including any Certificate of Designations relating to any series of Preferred
Stock) that relates solely to the terms of one or more outstanding series of
Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to
vote thereon pursuant to this Certificate of Incorporation (including any
Certificate of Designations relating to any series of Preferred Stock) or
pursuant to Delaware Law.
Sixth: (a) The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors.
(b) The names and mailing addresses of the persons who are to serve
initially as directors shall be set forth in a resolution adopted by the Board
of Directors in accordance with the bylaws of the Corporation.
(c) There shall be no cumulative voting in the election of directors.
(d) Vacancies on the Board of Directors resulting from death, resignation,
removal or otherwise and newly created directorships resulting from any increase
in the number of directors may be filled solely by a majority of the directors
then in office (although less than a quorum) or by the sole remaining director,
and each director so elected shall hold office until such director's successor
shall have been duly elected or qualified or until such director's earlier
death, resignation or removal.
Seventh: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
Eighth: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
B-1
If Delaware Law is hereafter amended to authorize corporate action further
limiting or eliminating the personal liability of directors, then the liability
of each director of the Corporation shall be limited or eliminated to the full
extent permitted by Delaware Law as so amended from time to time.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE EIGHTH
shall also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition to
the fullest extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE EIGHTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the employees and agents of the Corporation to such
extent and to such effect as the Board of Directors shall determine to be
appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE EIGHTH shall not be
exclusive of any other right which any person may otherwise have or hereafter
acquire.
(5) Neither the amendment nor repeal of this ARTICLE EIGHTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE EIGHTH
in respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
Ninth: Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of stockholders
at an annual or special meeting duly noticed and called in accordance with
Delaware Law, and may not be taken by written consent of stockholders without a
meeting.
Tenth: Special meetings of stockholders may be called by the Board of
Directors, the Chairman of the Board of Directors, the Chief Executive Officer
or the President of the Corporation and may not be called by any other person.
Eleventh: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE EIGHTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto signed my name this 9th day of August,
2004.
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, Incorporator
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
B-2
EXHIBIT C
BYLAWS
OF
THE XXXXXX MONDAVI CORPORATION
* * * * *
ARTICLE 1
OFFICES
SECTION 1.01. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 1.02. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
SECTION 1.03. Books. The books of the Corporation may be kept within or
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Time and Place Of Meetings. All meetings of stockholders
shall be held at such place, either within or without the State of Delaware, on
such date and at such time as may be determined from time to time by the Board
of Directors (or the Chairman in the absence of a designation by the Board of
Directors).
SECTION 2.02. Annual Meetings. An annual meeting of stockholders,
commencing with the year 2005, shall be held for the election of directors and
to transact such other business as may properly be brought before the meeting.
SECTION 2.03. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors, the Chairman of the Board of Directors, the
Chief Executive Officer or the President of the Corporation and may not be
called by any other person.
SECTION 2.04. Notice of Meetings and Adjourned Meetings; Waivers of
Notice. (a) Whenever stockholders are required or permitted to take any action
at a meeting, a written notice of the meeting shall be given which shall state
the place, if any, date and hour of the meeting, the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by the General Corporation Law of the State of Delaware
("Delaware Law"), such notice shall be given not less than 10 nor more than 60
days before the date of the meeting to each stockholder of record entitled to
vote at such meeting. Unless these bylaws otherwise require, when a meeting is
adjourned to another time or place (whether or not a quorum is present), notice
need not be given of the adjourned meeting if the time and place, if any,
thereof and the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
(b) A written waiver of any such notice signed by the person entitled
thereto, or a waiver by electronic transmission by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
C-1
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not validly called or
convened. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
SECTION 2.05. Quorum. Unless otherwise provided under the certificate of
incorporation or these bylaws and subject to Delaware Law, the presence, in
person or by proxy, of the holders of a majority of the shares of the
outstanding capital stock of the Corporation entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders present in person or represented by proxy may
adjourn the meeting, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented any business may be transacted
which might have been transacted at the meeting as originally notified.
SECTION 2.06. Voting. (a) Unless otherwise provided in the certificate of
incorporation and subject to Delaware Law, each stockholder shall be entitled to
one vote for each outstanding share of capital stock of the Corporation held by
such stockholder. Any share of capital stock of the Corporation held by the
Corporation shall have no voting rights. Unless otherwise provided under the
certificate of incorporation or these bylaws and subject to Delaware Law, the
affirmative vote of a majority of the shares of capital stock of the Corporation
present, in person or by written proxy, at a meeting of stockholders and
entitled to vote on the subject matter shall be the act of the stockholders.
Such proxy shall be filed with the Secretary before such meeting of
stockholders. Voting at meetings of stockholders need not be by written ballot
unless directed by the chairman of the meeting or the Board of Directors.
(b) Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by written proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
SECTION 2.07. Action by Consent. Any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken only upon
the vote of stockholders at an annual or special meeting duly noticed and called
in accordance with Delaware Law and may not be taken by written consent of
stockholders without a meeting.
SECTION 2.08. Organization. At each meeting of stockholders, the Chairman
of the Board, if one shall have been elected, or in his absence or if one shall
not have been elected, the director designated by the vote of the majority of
the directors present at such meeting, shall act as chairman of the meeting. The
Secretary (or in his absence or inability to act, the person whom the chairman
of the meeting shall appoint secretary of the meeting) shall act as secretary of
the meeting and keep the minutes thereof.
SECTION 2.09. Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
SECTION 2.10. Nomination of Directors. Only persons who are nominated in
accordance with the procedures set forth in these bylaws shall be eligible to
serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors or by any stockholder of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this Section 2.10, who shall be entitled to vote for the election of directors
at the meeting and who complies with the notice procedures set forth in this
Section 2.10. Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than
the close of business on the 90th calendar day prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 30 calendar days before or after
such anniversary date or that no annual meeting was held in the prior year,
notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of the 90th calendar day prior to such annual
meeting or the 10th calendar day following the calendar day on which public
announcement of the date of such meeting is first
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made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934 (the "SEC Proxy Rules") (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); and (b) as to the stockholder giving
the notice (i) the name and address, as they appear on the Corporation's books,
of such stockholder and (ii) the class and number of shares of the Corporation
which are beneficially owned by such stockholder and (iii) any other information
relating to such stockholder that would be required to be disclosed in the proxy
statement or other filings pursuant to the SEC Proxy Rules. At the request of
the Board of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary that information required
to be set forth in a stockholder's notice of nomination which pertains to the
nominee. No person shall be eligible to serve as a director of the Corporation
unless nominated in accordance with the procedures set forth in this bylaw. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the bylaws, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded. Notwithstanding
the foregoing provisions of this Section 2.10, a stockholder shall also comply
with all applicable requirements of the Securities Exchange Act of 1934, and the
rules and regulations thereunder with respect to the matters set forth in this
Section 2.10.
SECTION 2.11. Notice of Business at an Annual Meeting. At any annual
meeting of the stockholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in this Section 2.11,
who shall be entitled to vote at such meeting and who complies with the notice
procedures set forth in this Section 2.11. For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 90th calendar day
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
calendar days before or after such anniversary date or that no annual meeting
was held in the prior year, notice by the stockholder to be timely must be so
delivered not later than the close of business on the later of the 90th calendar
day prior to such annual meeting or the 10th calendar day following the calendar
day on which public announcement of the date of such meeting is first made by
the Corporation. In the event any business other than nominations is properly
brought by a stockholder before an annual meeting less than 90 calendar days
prior to such annual meeting pursuant to the proviso in the foregoing sentence,
the Board's proxy may confer discretionary authority on its holder to vote on
such business for which notice is received after public announcement of the date
of such meeting is first made by the Corporation. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, the class and number of shares of the
Corporation which are beneficially owned by the stockholder, any material
interest of the stockholder in such business and any other information that may
be required with respect to such proposal under the SEC Proxy Rules.
Notwithstanding anything in the bylaws to the contrary, no business shall be
conducted at an annual stockholder meeting except in accordance with the
procedures set forth in this Section 2.11. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of the
bylaws, and if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing, provisions of this Section 2.11, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, and the rules and regulations thereunder with respect to
the matters set forth in this Section 2.11.
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SECTION 2.12. Notice of Business at a Special Meeting. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting by (i) the person or persons calling such meeting
pursuant to Section 2.03 of these bylaws and (ii) if such meeting is called at
the request of stockholders, by the Board of Directors.
ARTICLE 3
DIRECTORS
SECTION 3.01. General Powers. Except as otherwise provided in the
certificate of incorporation and subject to Delaware Law, the business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors.
SECTION 3.02. Number, Election and Term of Office. The number of
directors which shall constitute the whole Board shall be fixed from time to
time by resolution of the Board of Directors. The directors shall be elected at
the annual meeting of stockholders by written ballot, except as provided in
Section 2.02 and Section 3.11 herein, and, each director so elected shall hold
office until such director's successor shall have been duly elected and
qualified or until such director's earlier death, resignation or removal.
Directors need not be stockholders.
SECTION 3.03. Quorum and Manner of Acting. Unless the certificate of
incorporation or these bylaws require a greater number, a majority of the total
number of directors shall constitute a quorum for the transaction of business,
and the affirmative vote of a majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors. When a
meeting is adjourned to another time or place (whether or not a quorum is
present), notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Board of Directors may transact any business which
might have been transacted at the original meeting. If a quorum shall not be
present at any meeting of the Board of Directors the directors present thereat
shall adjourn the meeting, from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 3.04. Time and Place of Meetings. The Board of Directors shall
hold its meetings at such place, either within or without the State of Delaware,
and at such time as may be determined from time to time by the Board of
Directors (or the Chairman in the absence of a determination by the Board of
Directors).
SECTION 3.05. Regular Meetings. After the place and time of regular
meetings of the Board of Directors shall have been determined and notice thereof
shall have been once given to each member of the Board of Directors, regular
meetings may be held without further notice being given.
SECTION 3.06. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer or the President and shall be called by the Chairman of the Board, Chief
Executive Officer, President or Secretary on the written request of two
directors. Notice of special meetings of the Board of Directors shall be given
to each director at least forty-eight hours before the date and time of the
meeting in such manner as is determined by the Board of Directors or the
Chairman of the Board, in the absence of such determination.
SECTION 3.07. Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the
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power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by Delaware Law to be submitted to the stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the Corporation. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
SECTION 3.08. Action by Consent. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions, are filed with the minutes of proceedings of the Board of
Directors or committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
SECTION 3.09. Telephonic Meetings. Unless otherwise restricted by the
certificate of incorporation or these bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or such committee, as the case may be, by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
SECTION 3.10. Resignation. Any director may resign at any time by giving
notice in writing or by electronic transmission to the Board of Directors or to
the Secretary. The resignation of any director shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such notice; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 3.11. Vacancies. Unless otherwise provided in the certificate of
incorporation, vacancies on the Board of Directors resulting from death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office (although less than a quorum) or by the sole
remaining director. Each director so chosen shall hold office until his
successor is elected and qualified, or until his earlier death, resignation or
removal. If there are no directors in office, then an election of directors may
be held in accordance with Delaware Law. Unless otherwise provided in the
certificate of incorporation, when one or more directors shall resign from the
Board of Directors, effective at a future date, a majority of the directors then
in office, including those who have so resigned, shall have the power to fill
such vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each director so chosen shall hold
office as provided in the filling of the other vacancies.
SECTION 3.12. Removal. Any director or the entire Board of Directors may
be removed from office, with or without cause, at any time by the stockholders
with the affirmative vote of the holders of not less than a majority of the
outstanding capital stock of the Corporation then entitled to vote at any
election of directors and the vacancies thus created may be filled in accordance
with Section 3.11 herein.
SECTION 3.13. Compensation. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the Board of Directors shall have
authority to fix the compensation of directors, including fees and reimbursement
of expenses.
ARTICLE 4
OFFICERS
SECTION 4.01. Principal Officers. The Corporation shall have a chairman
of the Board of Directors and/or one or more Chief Executive Officers or
Presidents, a Chief Financial Officer and a Secretary who shall have the duty,
among other things, to record the proceedings of the meetings of stockholders
and directors in a book kept for that purpose. The Corporation may also have
such other principal officers, including one or more Treasurers or Controllers,
as the Board of Directors may in its discretion appoint. One person may hold the
offices and perform the duties of any two or more of said offices.
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SECTION 4.02. Election, Term of Office and Remuneration. The principal
officers of the Corporation shall be chosen and appointed by the Board of
Directors; provided however, the Board of Directors may empower the chief
executive offer of the Corporation to appoint such officers, other than the
Chairman of the Board, President, Secretary or Chief Financial Officer. Each
such officer shall hold office until his successor is elected and qualified, or
until his earlier death, resignation or removal. The remuneration of all
officers of the Corporation shall be fixed by the Board of Directors. Any
vacancy in any office shall be filled in such manner as the Board of Directors
shall determine.
SECTION 4.03. Subordinate Officers. In addition to the principal officers
enumerated in Section 4.01 herein, the Corporation may have one or more
Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such
other subordinate officers, agents and employees as the Board of Directors may
deem necessary, each of whom shall hold office for such period as the Board of
Directors may from time to time determine. The Board of Directors may delegate
to any principal officer the power to appoint and to remove any such subordinate
officers, agents or employees.
SECTION 4.04. Removal. Except as otherwise permitted with respect to
subordinate officers, any officer may be removed, with or without cause, at any
time, by resolution adopted by the Board of Directors, or with regard to any
officer who has been appointed by the chief executive officer pursuant to
Section 4.02 or any principal officer pursuant to Section 4.03, by the chief
executive officer or any other officer upon whom such power of removal may be
conferred by the Board of Directors.
SECTION 4.05. Resignations. Any officer may resign at any time by giving
notice in writing or by electronic transmission to the Board of Directors (or to
a principal officer if the Board of Directors has delegated to such principal
officer the power to appoint and to remove such officer). The resignation of any
officer shall take effect upon receipt of notice thereof or at such later time
as shall be specified in such notice; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 4.06. Powers and Duties. The officers of the Corporation shall
have the powers and perform the duties incident to each of their respective
offices and such other duties as described herein:
(a) Chairman of the Board. The Chairman of the Board, if there be
such an officer, shall, if present, preside at all meetings of the Board of
Directors and shall exercise and perform such other powers and duties as
may be assigned from time to time by the Board of Directors or prescribed
by these bylaws. If no Chief Executive Officer or President is appointed,
the Chairman of the Board is the general manager and chief executive
officer of the Corporation, and shall exercise all powers of the Chief
Executive Officer or President described in (b) below.
(b) Chief Executive and Operating Officers. Subject to such powers,
if any, as may be given by the Board of Directors to the Chairman of the
Board, if there be such an officer, the Chief Executive Officer or Officers
(or the President, if so titled) shall be the general managers and chief
executive officers of the Corporation and shall have the general
supervision and control over the business and affairs of the Corporation,
subject to the control of the Board of Directors. The Chief Executive
Officer or Officers may sign and execute, in the name of the Corporation,
any instrument authorized by the Board of Directors, except when the
signing and execution thereof shall have been expressly delegated by the
Board of Directors or by these bylaws to some other officer or agent of the
Corporation. The Chief Executive Officer or Officers shall have all the
general powers and duties of management usually vested in the president of
a corporation, and shall have such other powers and duties as may be
prescribed from time to time by the Board of Directors or these bylaws. The
Chief Executive Officer or Officers shall have discretion to prescribe the
duties of other officers and employees of the Corporation in a manner not
inconsistent with the provisions of these bylaws and the directions of the
Board of Directors.
If a Chief Operating Officer is appointed, such Officer shall have
general supervision and control over the operations and administration of
the Corporation, subject to the control of the Board of Directors, Chairman
of the Board (if any is appointed) and Chief Executive Officers or Officer
(or the President, if so titled). The Chief Operating Officer may sign and
execute, in the name of the
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Corporation, any instrument authorized by the Board of Directors, except
when the signing and execution thereof shall have been expressly delegated
by the Board of Directors or by these bylaws to some other officer or agent
of the Corporation. The Chief Operating Officer shall have all the general
powers and duties of management usually vested in the chief operating
officer of a corporation, and shall have such other powers and duties as
may be prescribed from time to time by the Board of Directors or these
bylaws.
(c) Vice Presidents. In the absence or disability of the Chief
Executive Officer (or both Chief Executive Officers, if two are elected) or
President, in the event of a vacancy in the office of Chief Executive
Officer (or both Chief Executive Officers, if two are elected) or
President, or in the event such officer refuses to act, the Vice President
shall perform all the duties of the Chief Executive Officer or President
and, when so acting, shall have all the powers of, and be subject to all
the restrictions of, the Chief Executive Officer or President. If at any
such time the Corporation has more than one vice president, the duties and
powers of the Chief Executive Officer or President shall pass to each vice
president in order of such vice president's rank as fixed by the Board of
Directors or, if the vice presidents are not so ranked, to the vice
president designated by the Board of Directors. The vice presidents shall
have such other powers and perform such other duties as may be prescribed
for them from time to time by the Board of Directors or pursuant to
Sections 4.01 and 4.02 of these bylaws or otherwise pursuant to these
bylaws.
(d) The Secretary shall:
(1) Keep, or cause to be kept, minutes of all meetings of the
Corporation's shareholders, Board of Directors, and committees of the
Board of Directors, if any. Such minutes shall be kept in written form.
(2) Keep, or cause to be kept, at the principal executive office of
the Corporation, or at the office of its transfer agent or registrar, if
any, a record of the Corporation's shareholders, showing the names and
addresses of all shareholders, and the number and classes of shares held
by each. Such records shall be kept in written form or any other form
capable of being converted into written form.
(3) Keep, or cause to be kept, at the principal executive office of
the Corporation, or if the principal executive office is not in
California, at its principal business office in California, an original
or copy of these bylaws, as amended.
(4) Give, or cause to be given, notice of all meeting of
shareholders, directors and committees of the Board of Directors, as
required by law or by these bylaws.
(5) Keep the seal of the Corporation, if any, in safe custody.
(6) Exercise such powers and perform such duties as are usually
vested in the office of secretary of a corporation and exercise such
other powers and perform such other duties as may be prescribed from
time to time by the Board of Directors or these bylaws.
If any assistant secretaries are appointed, the assistant secretary,
or one of the assistant secretaries, if there are more than one, in the
order of their rank as fixed by the Board of Directors or, if they are not
so ranked, the assistant secretary designated by the Board of Directors, in
the absence or disability of the Secretary or in the event of such
officer's refusal to act or if a vacancy exists in the office of Secretary,
shall perform the duties and exercise the powers of the Secretary and shall
have such powers and discharge such duties as may be assigned from time to
time pursuant to these bylaws or by the Board of Directors.
(e) Chief Financial Officer. The Chief Financial Officer shall:
(1) Be responsible for all functions and duties of the treasurer of
the Corporation.
(2) Keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of account for the Corporation.
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(3) Receive or be responsible for receipt of all monies due and
payable to the Corporation from any source whatsoever; have charge and
custody of, and be responsible for, all monies and other valuables of
the Corporation and be responsible for deposit of all such monies in the
name and to the credit of the Corporation with such depositaries as may
be designated by the Board of Directors or a duly appointed and
authorized committee of the Board of Directors.
(4) Disburse or be responsible for the disbursement of the funds of
the Corporation as may be ordered by the Board of Directors or a duly
appointed and authorized committee of the Board of Directors.
(5) Render to the chief executive officer and the Board of
Directors a statement of the financial condition of the Corporation if
called upon to do so.
(6) Exercise such powers and perform such duties as are usually
vested in the office of chief financial officer of a corporation, and
exercise such other powers and perform such other duties as may be
prescribed by the Board of Directors or these bylaws.
If any assistant financial officer is appointed, the assistant
financial officer, or one of the assistant financial officers, if there are
more than one, in the order of their rank as fixed by the Board of
Directors or, if they are not so ranked, the assistant financial officer
designated by the Board of Directors, shall, in the absence or disability
of the Chief Financial Officer or in the event of such officer's refusal to
act, or if a vacancy exists in the office of Chief Financial Officer,
perform the duties and exercise the powers of the Chief Financial Officer,
and shall have such powers and discharge such duties as may be assigned
from time to time pursuant to these bylaws or by the Board of Directors.
ARTICLE 5
INDEMNIFICATION
SECTION 5.01. Indemnification of Directors and Officers. (a) Third Party
Actions. The Corporation shall indemnify and hold harmless each person who was
or is a party or is threatened to be made a party to, or is involved in any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Corporation) actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, in itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed to
be in or not opposed to the best interest of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) Actions by or in the Right of the Corporation. The Corporation shall
indemnify and hold harmless each person who was or is a party or is threatened
to be made a party to, or is involved in any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) and amounts paid
in settlement (if such settlement is approved in advance by the Corporation)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation, except that, if applicable law so provides, no
indemnification shall be made in respect of any claim, issue or matter as
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to which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper. Notwithstanding any other provision of this Article 5, no person shall
be indemnified hereunder for any expenses or amounts paid in settlement with
respect to any action to recover short-swing profits under Section 16(b) of the
Securities Exchange Act of 1934, as amended.
SECTION 5.02. Indemnification of Employees and Agents. The Corporation
may, by action of its Board of Directors, provide indemnification to such of the
employees and agents of the Corporation to such extent and to such effect as the
Board of Directors shall determine to be appropriate and authorized by Delaware
Law.
SECTION 5.03. Successful Defense. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
5.01 or Section 5.02, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection therewith.
SECTION 5.04. Determination of Conduct. Any indemnification under Section
5.01 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that the indemnification of
the director or officer is proper in the circumstances because the person has
met the applicable standard of conduct set forth in Section 5.01. Any
indemnification under Section 5.02 (unless ordered by a court) shall be made by
the Corporation upon a determination that such indemnification is appropriate
and authorized by Delaware law. Such determination shall be made (1) by a
majority vote of the disinterested directors, even though less than a quorum, or
(2) if there are no such directors or such directors so direct, by independent
legal counsel in a written opinion, or (3) by the stockholders. Notwithstanding
the foregoing, a director or officer of the Corporation shall be entitled to
contest any determination that the director or officer has not met the
applicable standard of conduct set forth in Section 5.01 by petitioning a court
of competent jurisdiction.
SECTION 5.05. Selection of Independent Counsel. If the determination of
entitlement to indemnification is to be made by independent counsel pursuant to
Section 5.04 hereof, the independent counsel shall be selected as provided in
this Section 5.05. The independent counsel shall be selected jointly by such
director or officer and the Corporation. In the event such director or officer
and the Corporation cannot agree on a selection for the independent counsel,
either party may petition the Delaware Court of Chancery or other court of
competent jurisdiction to resolve the issue or to make its own provisions for
the selection of independent counsel. The Corporation shall pay any and all
reasonable fees and expenses of independent counsel incurred by such independent
counsel in connection with acting pursuant to Section 5.04 hereof, and the
Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 5.05, regardless of the manner in which such
independent counsel was selected or appointed.
SECTION 5.06. Payment of Expenses in Advance. Expenses incurred in
defending a civil or criminal action, suit or proceeding, by an individual who
is determined to be entitled to indemnification pursuant to Section 5.01, shall
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that the individual is not entitled to be indemnified by the Corporation as
authorized in this Article 5; provided, however, that the Corporation shall not
be required to advance expenses to any director or officer in connection with
any proceeding (or part thereof) initiated by such person unless the proceeding
was authorized in advance by the Board of Directors; and provided further that
no advance shall be made by the Corporation to a director or officer of the
Corporation in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and promptly
made (i) by a majority vote of disinterested directors or (ii) if there are no
such directors or such directors so direct, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the
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time such determination is made demonstrate clearly and convincingly that such
person acted in bad faith or in a manner that such person did not believe to be
in or not opposed to the best interests of the Corporation.
SECTION 5.07. Indemnity Not Exclusive. The indemnification and
advancement of expenses provided by or granted pursuant to the other sections of
this Article 5 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
other provision of these bylaws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in their official
capacity and as to action in another capacity while holding such office.
SECTION 5.08. Insurance Indemnification. The Corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise,
against any expense or liability or loss incurred by such person in any such
capacity or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under Delaware Law.
SECTION 5.09. The Corporation. For purposes of this Article 5, references
to "the Corporation" shall include, in addition to the resulting Corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had the power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under and subject to the provisions
of this Article 5 (including, without limitation, the provisions of Section 5.01
and Section 5.02) with respect to the resulting or surviving corporation as the
person would have with respect to such constituent corporation if its separate
existence had continued.
SECTION 5.10. Other Definitions. For purposes of this Article 5,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involved service by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article 5.
SECTION 5.11. Continuation of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 5 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 5.12. Amendments. Any repeal or modification of this Article 5
shall only be prospective and shall not affect the rights under this bylaw in
effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the Corporation.
ARTICLE 6
GENERAL PROVISIONS
SECTION 6.01. (a) Fixing the Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than 60 nor less than 10 days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of
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stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided that the
Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION 6.02. Dividends. Subject to limitations contained in Delaware Law
and the certificate of incorporation and under Delaware Law, the Board of
Directors may declare and pay dividends upon the shares of capital stock of the
Corporation, which dividends may be paid either in cash, in property or in
shares of the capital stock of the Corporation.
SECTION 6.03. Fiscal Year. The fiscal year of the Corporation shall
commence on July 1 and end on June 30 of each year.
SECTION 6.04. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
SECTION 6.05. Voting of Stock Owned by the Corporation. The Board of
Directors may authorize any person, on behalf of the Corporation, to attend,
vote at and grant proxies to be used at any meeting of stockholders of any
corporation (except this Corporation) in which the Corporation may hold stock.
SECTION 6.06. Amendments. These bylaws or any of them, may be altered,
amended or repealed, or new bylaws may be made, by the stockholders entitled to
vote thereon at any annual or special meeting thereof or by the Board of
Directors.
IN WITNESS WHEREOF, I have hereunto signed my name this 9th day of August,
2004.
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Incorporator
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