- Current report filing (8-K)
May 25 2011 - 5:05PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 19, 2011
THE TALBOTS, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware
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1-12552
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41-1111318
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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One Talbots Drive, Hingham, Massachusetts
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02043
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code (781) 749-7600
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
INFORMATION TO BE INCLUDED IN THE REPORT
Section 5 Corporate Governance and Management
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As a result of the 2010 merger transaction between BPW Acquisition Corp. and The Talbots, Inc. (the
Company), the Company is no longer a controlled, majority-owned corporation. Following this
transaction, the Companys Corporate Governance and Nominating Committee undertook a review in
order to modernize the Companys by-laws in keeping with current practices. As a result of this
review, the Companys Board of Directors (the Board), at its May 19, 2011 meeting held following
the 2011 Annual Meeting of Shareholders (Annual Meeting), approved an amendment and restatement
of the Companys by-laws, effective as of that date. Among other matters, the by-laws have been
amended and restated to reflect the following:
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Special Meeting of Stockholders (Section 1.2)
The by-laws have been amended to add and
clarify procedural requirements for special stockholder meetings, including the following:
A stockholder request to call a special meeting of stockholders must set forth the business
proposed to be conducted at the special meeting. The Secretary may deny a request if the
same or substantially the same proposed business was or will be covered at a meeting of
stockholders held or to be held within 90 days of receipt of the request. The request
needs to be accompanied by a notice setting forth information concerning the proposed
business including any proposed director nomination and concerning the proposing
stockholder, which information is to be updated and supplemented as of the record date and
as of a date closer to the meeting. The Board may submit additional matters and cause
other business to be transacted at the meeting. A proposal may not be presented for
stockholder action at a special meeting if the stockholder or beneficial owner acts
contrary to the representations set forth in a request to call a special meeting. The
Secretary may, in his or her discretion, decline to accept a request (i) that does not
comply with the provisions of this section of the by-laws, (ii) that relates to an item of
business that is not a proper subject for stockholder action under applicable law or (iii)
that is delivered between the 61st day after the earliest date of a request delivered to
the Secretary relating to the same or substantially similar item and ending one year from
such earliest date. The Board may waive one or more requirements for a special meeting.
Business transacted at a special meeting shall be limited to the purposes stated in the
notice to stockholders of such special meeting.
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Stockholder Meeting Adjournments (Section 1.4)
The amended by-laws clarify that the
chairman of the meeting has the authority to determine whether to adjourn a stockholder
meeting, whether or not a quorum of stockholders is present at the meeting. The amended
by-laws also require notice of an adjourned meeting where a new record date for
stockholders entitled to vote is fixed for an adjourned meeting.
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Quorum at a Stockholder Meeting (Section 1.5)
The amended by-laws clarify that the
determination of a quorum is based on the voting power of the outstanding shares entitled
to vote.
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Conduct of Stockholder Meeting (Section 1.6)
The amended by-laws clarify the authority
and power of the chairman of the meeting with respect to the conduct of stockholder
meetings including establishing the agenda, attendance or participation at the meeting, and
such other acts as the chairman of the meeting determines to be appropriate for the proper
conduct of the meeting. The amended by-laws also clarify that the chairman of the meeting
has the power to determine whether a nomination or other business proposed to be brought
before the meeting was made or proposed in accordance with the amended by-laws and, if
appropriate, determine that such matter was not properly brought.
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Voting; Proxies (Section 1.8)
The amended by-laws clarify the means by which a
stockholder may grant valid proxy authority. The amended by-laws also provide that the
advisory vote with respect to executive compensation as required by Dodd-Frank
(Say-on-Pay) shall require the affirmative vote of a majority of the votes cast and the
determination of the frequency of the Say-on-Pay vote shall be decided by a majority of the
votes cast, with abstentions and broker non-votes not being considered as votes cast.
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Stockholder Action by Written Consent (Section 1.9)
The by-laws have been amended to
add and clarify procedural requirements for stockholder action by written consent,
including the following: Stockholders seeking to take action by written consent would
provide requisite notice to the Company, and the Board may within 10 days after it receives
such request adopt a resolution fixing a record date for such purpose. The record date
would be no more than 10 days after the date of the Board resolution fixing the record
date. The stockholder notice would be required to describe the action that the stockholder
proposes to take by written consent. Each written consent must bear the date of signature,
and no written consent will be effective to take the corporate action referred to unless,
within 60 days of the earliest dated written consent delivered to the Company, written
consents signed by a sufficient number of stockholders of record to take such action are
delivered to the Company. The Company may engage an independent inspector of election to
perform a ministerial review of the validity of the written consents and revocations.
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Advance Notice of Stockholder Proposals (Section 1.13)
The amended by-laws clarify and
add procedural requirements for advance notice of stockholder proposals, including the
following:
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Annual Meeting.
Nominations for election to the Board and proposals of other business to be
considered by stockholders may be made at an annual meeting of stockholders only (A)
pursuant to the Companys proxy materials with respect to such meeting, in the case of a
proposal of any business other than the election or nomination of directors, or (B) by or at
the direction of the Board, or (C) by any stockholder who was a stockholder of record at the
time such notice is delivered to the Secretary of the Company and at the time of the annual
meeting, is entitled to vote at such meeting, and complies with the notice procedures set
forth in the amended by-laws. The amended by-laws provide specific notice periods for any
stockholder notice for director nominations or other business to be proposed to be conducted
at the meeting, and provide the particular information required to be included in the
notice. The amended by-laws also require information about the stockholder giving the notice
and any beneficial owner on whose behalf the nomination or proposal is
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made, including detailed information concerning
stockholdings, derivative holdings and other specified holdings or interests. A
stockholders notice is required to be updated and supplemented as of the record date and as
of a date closer to the date of the meeting.
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Special Meeting.
The amended by-laws require similar information in connection with
stockholder action for director nominations or other business to be brought before a special
meeting of stockholders, the time periods within which such stockholder notice must be
provided to the Company in advance of such meeting, as well as updating and supplementing of
such information.
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The amended by-laws provide that only nominations and other business shall be conducted at a
stockholders meeting as shall have been brought in accordance with the advance notice by-law
provisions. The amended by-laws require the proposing stockholder to be a stockholder of
record and for the stockholder or a qualified representative to appear at such meeting.
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Director Qualifications (Section 1.14)
The amended by-laws add certain director
qualifications, including: In order for a person to be qualified and eligible to serve as
a director elected or reelected at a meeting of stockholders, the person must within the
time period provided in the amended by-laws deliver to the Secretary of the Company a
director questionnaire and the written representations provided for in the amended by-laws.
A person shall not be qualified and eligible to fill a vacancy or newly created
directorship unless such person has delivered the same information as above on or before
such appointment. The Board may waive any of the requirements of this section and a
director will be deemed to have satisfied this section if a director is elected or
reelected and neither any challenge to such directors qualification is submitted to the
Secretary nor a determination by the Board with respect to such persons failure to satisfy
the provisions of this section is made on or before the 10
th
day after his or
her election or reelection. The Board will determine whether any person has satisfied the
provisions of this section and if the Board determines that a person has not satisfied the
requirements of this section, such person may not be elected or appointed as a director.
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Director Independence (Section 2.1)
The amended by-laws clarify that independence will
be determined by the Board in good faith in accordance with applicable director
independence requirements under the listing requirements of the principal stock exchange on
which the Companys common stock is then listed.
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Board Vacancies (Section 2.2)
The amended by-laws clarify the procedure for director
resignations. The amended by-laws also clarify that only the Board has the right to fill
vacancies, whether arising due to a director leaving the Board or as a result of an
increase in the size of the Board, and that no decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
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Special Board Meeting (Section 2.4)
The amended by-laws clarify the notice provisions
for special Board meetings.
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Board Action (Section 2.7)
The amended by-laws eliminate the list of specified items
requiring Board approval that was previously included in Section 2.7 of the prior by-laws.
Such items will be separately addressed by the Board.
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Reliance on Accounts and Reports (Section 2.12)
The amended by-laws provide that
directors may rely in good faith on certain records, reports, opinions, statements and
other information as described in new Section 2.12.
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Committees (Sections 3.1 and 3.2)
The amended by-laws update the provisions regarding
committees of the Board covering such matters as quorum, term, vacancies, approval,
adoption and repeal of committee rules, appointment of committee chairpersons, and change
of committee membership, and clarify that certain powers and authority are not to be
provided to committees.
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Delegation to Officers (Section 4.3)
The amended by-laws clarify that the Board may
delegate the powers and duties of any officer to any other officer or
agent.
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Stock (Article 5)
The amended by-laws update provisions of the prior by-laws concerning
uncertificated shares and transfer of shares.
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Indemnification (Article 7)
The amended by-laws provide modifications to and clarify the
indemnification provisions, advancement of expenses, procedures for indemnification,
preservation of rights, and insurance.
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Amendment (Section 8.1)
The amended by-laws provide that the Board may amend the by-laws
by majority vote of the entire Board and that stockholders may amend the by-laws by a vote
of a majority of the outstanding common stock. The prior by-laws had provided that the
Board may amend the by-laws or adopt new by-laws by action by the Board and that the
stockholders entitled to vote may adopt additional by-laws and may amend or repeal any
by-law whether or not adopted by them.
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General Changes Throughout the Amended By-laws
Other changes appear throughout the
amended and restated by-laws, including without limitation, provisions concerning the
opportunity for stockholder meetings to be held pursuant to remote communication; separate
record dates for notice of and voting at a stockholders meeting if the Board so elects;
electronic transmission of meeting notice to stockholders; and updates in terms of various
procedural matters.
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The foregoing description of the Companys amended and restated by-laws is a summary only and is
qualified in its entirety by reference to the full and complete text of the amended and restated
by-laws attached as Exhibit 3.1 to this report and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
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(a)
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The Company held its Annual Meeting on May 19, 2011.
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(b)
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At the Annual Meeting, shareholders voted on the following four proposals and cast their
votes as described below. The proposals are described in more detail in the Companys proxy
statement filed with the Commission on April 8, 2011.
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Proposal No. 1 Election of Directors
The Companys shareholders elected all six of the Companys nominees for director as set forth
below:
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Votes For
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Votes Withheld
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Broker Non-Votes
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Gary M. Pfeiffer
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47,939,565
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3,356,533
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11,235,287
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Marjorie L. Bowen
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50,589,871
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706,227
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11,235,287
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John W. Gleeson
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48,846,020
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2,450,078
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11,235,287
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Andrew H. Madsen
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48,838,559
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2,457,539
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11,235,287
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Trudy F. Sullivan
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50,561,088
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735,010
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11,235,287
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Susan M. Swain
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50,566,913
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729,185
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11,235,287
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Proposal No. 2 Ratification of Deloitte & Touche LLP
The Companys shareholders ratified the appointment of Deloitte & Touche LLP as the Companys
independent registered public accounting firm for the 2011 fiscal year as set forth below:
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Votes For
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Votes Against
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Abstain
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61,881,661
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507,557
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142,167
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Proposal No. 3 Advisory Vote on Executive Compensation
The Companys shareholders cast their votes with respect to the advisory vote on executive
compensation as set forth below:
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Votes For
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Votes Against
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Abstain
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Broker Non-Votes
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23,602,929
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26,179,560
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1,513,609
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11,235,287
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Although this vote is advisory, the Board takes the results of this vote seriously. The Board and
its Compensation Committee are committed to the continuous evaluation of our compensation programs
and to considering appropriate adjustments to those programs in order to reflect progress made
toward the Companys turnaround as well as input from our shareholders.
Proposal No. 4 Advisory Vote on the Frequency of Future Advisory Votes on Executive
Compensation
The Companys shareholders cast their votes with respect to the advisory vote on the frequency of
future advisory votes on executive compensation as set forth below:
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One Year
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Two Years
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Three Years
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Abstain
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Broker Non-Votes
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47,804,062
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208,136
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1,746,435
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1,537,465
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11,235,287
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The results of the shareholder vote on Proposal No. 4 (the Say-on-Frequency Vote) were consistent
with the recommendation of the Board that the advisory vote on executive compensation be held every
year. Accordingly, the Company will hold an "annual" advisory vote on
executive compensation unless changed as a result of a subsequent Say-on-Frequency Vote.
Section 9 Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits.
3.1
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Amended and Restated By-laws of The Talbots, Inc., effective as of May 19, 2011.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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THE TALBOTS, INC.
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Dated: May 25, 2011
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By:
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/s/ Richard T. OConnell, Jr.
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Name:
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Richard T. OConnell, Jr.
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Title:
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Executive Vice President,
Real Estate, Legal, Store Planning &
Design and Construction,
and Secretary
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