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AMENDED AND RESTATED BYLAWS
OF
UNITED NATURAL FOODS, INC.
A DELAWARE CORPORATION
AS APPROVED BY THE BOARD OF DIRECTORS OF THE
CORPORATION ON SEPTEMBER 13, 2007
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ARTICLE I
STOCKHOLDERS
SECTION 1.1. Place of Meetings. All meetings of stockholders shall be held
at such place within or without the State of Delaware as may be designated from
time to time by the Board of Directors or the Chief Executive Officer (or, if
there is no Chief Executive Officer, the President) or, if not so designated, at
the registered office of the corporation. The board of directors may, in its
sole discretion, determine that a meeting shall not be held at any place, but
may instead be held either solely by means of remote communication or
concurrently with a meeting held at a designated place in a manner consistent
with the General Corporation Law of the State of Delaware.
SECTION 1.2. Annual Meeting. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held within six months after the
end of each fiscal year of the corporation on a date to be fixed by the Board of
Directors or the Chief Executive Officer (or, if there is no Chief Executive
Officer, the President) (which date shall not be a legal holiday) at the time
and place (if any) to be fixed by the Board of Directors or the Chief Executive
Officer (or, if there is no Chief Executive Officer, the President) and stated
in the notice of the meeting. If no annual meeting is held in accordance with
the foregoing provisions, the Board of Directors shall cause the meeting to be
held as soon thereafter as convenient. If no annual meeting is held in
accordance with the foregoing provisions, a special meeting may be held in lieu
of the annual meeting, and any action taken at that special meeting shall have
the same effect as if it had been taken at the annual meeting, and in such case
all references in these Bylaws to the annual meeting of the stockholders shall
be deemed to refer to such special meeting.
SECTION 1.3. Special Meetings. Special meetings of stockholders may be
called at any time by the Chair of the Board of Directors, the Chief Executive
Officer (or, if there is no Chief Executive Officer, the President) or the Board
of Directors. Business transacted at any special meeting of stockholders shall
be limited to matters relating to the purpose or purposes stated in the notice
of meeting.
SECTION 1.4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special, shall
be given not less than 10 nor more than 60 days before the date of the meeting
to each stockholder entitled to vote at such meeting. Without limiting the
manner by which notice otherwise may be given to stockholders, any notice shall
be effective if given by a form of electronic transmission consented to (in a
manner consistent with the General Corporation Law of the State of Delaware) by
the stockholder to whom the notice is given. The notices of all meetings shall
state the place (if any), date and hour of the meeting and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such meeting. The notice of a special meeting
shall state, in addition, the purpose or purposes for which the meeting is
called. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the corporation. If notice is given by electronic
transmission, such notice shall be deemed given at the time specified in Section
232 of the General Corporation Law of the State of Delaware.
SECTION 1.5. Voting List. The officer who has charge of the stock ledger
of the corporation shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary business hours, for a
period of at least 10 days prior to the meeting, at a place within the city
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present. If the meeting is to be held solely
by means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole of the meeting on a reasonable
accessible electronic network, and the information required to access such list
shall be provided with the notice of the meeting.
SECTION 1.6. Quorum. Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person, present by means of remote communication in a
manner, if any, authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction of business.
SECTION 1.7. Adjournments. Any meeting of stockholders may be adjourned to
any other time and to any other place at which a meeting of stockholders may be
held under these Bylaws by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum, or, if no stockholder
is present, by any officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place (if any) of the adjourned meeting,
and the means of remote communication, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such adjourned
meeting, are announced at the meeting at which adjournment is taken, unless
after the adjournment a new record date is fixed for the adjourned meeting. At
the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting.
SECTION 1.8. Voting and Proxies. Each stockholder shall have one vote for
each share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
by the General Corporation Law of the State of Delaware, the Certificate of
Incorporation or these Bylaws. Each stockholder of record entitled to vote at a
meeting of stockholders may vote in person (including by means of remote
communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such meeting, if authorized by the Board of
Directors) or may authorize another person or persons to vote or act for such
stockholder by written proxy executed or transmitted in a manner permitted by
the General Corporation Law of the State of Delaware by the stockholder or such
stockholder's authorized agent and delivered (including by electronic
transmission) to the Secretary of the corporation. No such proxy shall be voted
or acted upon after three years from the date of its execution, unless the proxy
expressly provides for a longer period.
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SECTION 1.9. Action at Meeting. When a quorum is present at any meeting,
the holders of a majority of the stock present or represented and voting on a
matter (or if there are two or more classes of stock entitled to vote as
separate classes, then in the case of each such class, the holders of a majority
of the stock of that class present or represented and voting on a matter) shall
decide any matter to be voted upon by the stockholders at such meeting, except
when a different vote is required by express provision of law, the Certificate
of Incorporation or these Bylaws. Any election by stockholders shall be
determined by a plurality of the votes cast by the stockholders entitled to vote
at the election.
SECTION 1.10. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nomination for election to the Board of Directors of the corporation
at a meeting of stockholders may be made by the Board of Directors or by any
stockholder of the corporation entitled to vote for the election of directors at
such meeting who complies with the notice procedures set forth in this Section
1.10. Such nominations, other than those made by or on behalf of the Board of
Directors, shall be made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the Secretary, and received not less
than 60 days nor more than 90 days prior to such meeting; provided, however,
that if less than 70 days' notice or prior public disclosure of the date of the
meeting is given to stockholders, such nomination shall have been mailed or
delivered to the Secretary not later than the close of business on the 10th day
following the date on which the notice of the meeting was mailed or such public
disclosure was made, whichever occurs first. Such notice shall set forth (a) as
to each proposed nominee (i) the name, age, business address and, if known,
residence address of each such nominee, (ii) the principal occupation or
employment of each such nominee, (iii) the number of shares of stock of the
corporation which are beneficially owned by each such nominee, and (iv) any
other information concerning the nominee that must be disclosed as to nominees
in proxy solicitations pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to be named as
a nominee and to serve 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. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation. The chair of the
meeting may, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure, and if the
chair should so determine, the chair shall so declare to the meeting and the
defective nomination shall be disregarded.
SECTION 1.11. Notice of Business at Annual Meetings. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before an annual meeting
by a stockholder. For business to be properly brought before an annual meeting
by a stockholder, if such business relates to the election of directors of the
corporation, the procedures in Section 1.10 must be complied with. If such
business relates to any other matter, the stockholder must have given timely
notice thereof in writing to the Secretary. To be timely, a stockholder's notice
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must be delivered to or mailed and received at the principal executive offices
of the corporation not less than 60 days nor more than 90 days prior to the
meeting; provided, however, that in the event that less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the date on which
such notice of the date of the meeting was mailed or such public disclosure was
made, whichever occurs first. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the stockholder proposing such business, (c) the class and number of shares of
the corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding anything
in these Bylaws to the contrary, no business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this Section 1.11
and except that any stockholder proposal which complies with Rule 14a-8 of the
proxy rules (or any successor provision) promulgated under the Securities
Exchange Act of 1934, as amended, and is to be included in the corporation's
proxy statement for an annual meeting of stockholders shall be deemed to comply
with the requirements of this Section 1.11. The chair of the meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 1.11, and if the chair should so determine, the chair shall so declare
to the meeting that any such business not properly brought before the meeting
shall not be transacted.
SECTION 1.12. Action without Meeting. Stockholders may not take any action
by written consent in lieu of a meeting.
SECTION 1.13. Organization. The Chair of the Board, or in the Chair's
absence the Vice Chair of the Board designated by the Chair of the Board, or the
Chief Executive Officer (or, if there is no Chief Executive Officer, the
President), in the order named, shall call meetings of the stockholders to
order, and shall act as chair of such meeting; provided, however, that the Board
of Directors may appoint any stockholder to act as chair of any meeting in the
absence of the Chair of the Board. The Secretary of the corporation shall act as
secretary at all meetings of the stockholders; but in the absence of the
Secretary at any meeting of the stockholders, the presiding officer may appoint
any person to act as secretary of the meeting.
ARTICLE II
DIRECTORS
SECTION 2.1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws. In the event of a vacancy
in the Board of Directors, the remaining directors, except as otherwise provided
by law, may exercise the powers of the full Board until the vacancy is filled.
SECTION 2.2. Number; Election and Qualification. The number of directors
which shall constitute the whole Board of Directors shall be determined by
resolution of the Board of Directors, but in no event shall be less than three.
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The number of directors may be decreased at any time and from time to time by a
majority of the directors then in office, but only to eliminate vacancies
existing by reason of the death, resignation, removal or expiration of the term
of one or more directors. The directors shall be elected at the annual meeting
of stockholders by such stockholders as have the right to vote on such election.
Directors need not be stockholders of the corporation.
SECTION 2.3. Classes of Directors. The Board of Directors shall be and is
divided into three classes: Class I, Class II and Class III. No one class shall
have more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the designated number of
directors by three, then, if such fraction is one-third, the extra director
shall be a member of Class I, and if such fraction is two-thirds, one of the
extra directors shall be a member of Class I and one of the extra directors
shall be a member of Class II, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
SECTION 2.4. Terms of Office. Each director shall serve for a term ending
on the date of the third annual meeting following the annual meeting at which
such director was elected; provided, that each initial director in Class I shall
serve for a term ending on the date of the annual meeting of stockholders in
1997; each initial director in Class II shall serve for a term ending on the
date of the annual meeting of stockholders in 1998; and each initial director in
Class III shall serve for a term ending on the date of the annual meeting of
stockholders in 1999; and provided further, that the term of each director shall
be subject to the election and qualification of such director's successor and to
such director's earlier death, resignation or removal.
SECTION 2.5. Allocation of Directors. In the event of any increase or
decrease in the authorized number of directors, (i) each director then serving
as such shall nevertheless continue as a director of the class of which such
director is a member and (ii) the newly created or eliminated directorships
resulting from such increase or decrease shall be apportioned by the Board of
Directors among the three classes of directors so as to ensure that no one class
has more than one director more than any other class. To the extent possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation, and any newly eliminated directorships shall be
subtracted from those classes whose terms of offices are to expire at the
earliest dates following such allocation, unless otherwise provided from time to
time by resolution adopted by the Board of Directors.
SECTION 2.6. Vacancies. Any vacancy in the Board of Directors, however
occurring, including a vacancy resulting from an enlargement of the Board, shall
be filled only by vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. A director elected to fill
a vacancy shall be elected for the unexpired term of such director's predecessor
in office, and a director chosen to fill a position resulting from an increase
in the number of directors shall hold office until the next election of the
class for which such director shall have been chosen, subject to the election
and qualification of such director's successor and to such director's earlier
death, resignation or removal.
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SECTION 2.7. Resignation. Any director may resign by delivering a written
resignation to the corporation at its principal office or to the Chief Executive
Officer (or, if there is no Chief Executive Officer, the President) or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 2.8. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place, either within or without the
State of Delaware, as shall be determined from time to time by the Board of
Directors; provided that any director who is absent when such a determination is
made shall be given notice of the determination. A regular meeting of the Board
of Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
SECTION 2.9. Special Meetings. Special meetings of the Board of Directors
may be held at any time and place, within or without the State of Delaware,
designated in a call by the Chair of the Board, the Chief Executive Officer (or,
if there is no Chief Executive Officer, the President), two or more directors,
or by one director in the event that there is only a single director in office.
SECTION 2.10. Notice of Special Meetings. Notice of any special meeting of
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 24 hours in advance of the meeting, (ii) by sending a telegram, telecopy,
or telex, or delivering written notice by hand, to such director's last known
business or home address at least 24 hours in advance of the meeting, or (iii)
by mailing written notice to such director's last known business or home address
at least 72 hours in advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes of the meeting.
SECTION 2.11. Meetings by Telephone Conference Calls. Directors or any
members of any committee designated by the directors may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall constitute presence in person at such meeting.
SECTION 2.12. Quorum. A majority of the total number of the whole Board of
Directors shall constitute a quorum at all meetings of the Board of Directors.
In the event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such director
so disqualified; provided, however, that in no case shall less than one-third
(1/3) of the number so fixed constitute a quorum. In the absence of a quorum at
any such meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice other than announcement at the meeting,
until a quorum shall be present.
SECTION 2.13. Action at Meeting. At any meeting of the Board of Directors
at which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these Bylaws.
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SECTION 2.14. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the Board
of Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the written
consents are filed with the minutes of proceedings of the Board or committee.
SECTION 2.15. Removal. Directors of the corporation may be removed only
for cause by the affirmative vote of the holders of two-thirds of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote.
SECTION 2.16. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, 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 of the committee present at any meeting and not disqualified
from voting, whether or not the 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
and subject to the provisions of the General Corporation Law of the State of
Delaware, 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. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these Bylaws for the Board of Directors.
SECTION 2.17. Compensation of Directors. Directors may be paid such
compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to time
determine. No such payment shall preclude any director from serving the
corporation or any of its parent or subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE III
OFFICERS
SECTION 3.1. Enumeration. The officers of the corporation shall consist of
a President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chair of the
Board, a Vice Chair of the Board, a Chief Executive Officer and one or more Vice
Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of
Directors may appoint such other officers as it may deem appropriate.
SECTION 3.2. Election. The President, Treasurer and Secretary shall be
elected annually by the Board of Directors at its first meeting following the
annual meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
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SECTION 3.3. Qualification. No officer need be a stockholder. Any two or
more offices may be held by the same person.
SECTION 3.4. Tenure. Except as otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws, each officer shall hold office
until such officer's successor is elected and qualified, unless a different term
is specified in the vote choosing or appointing such officer, or until such
officer's earlier death, resignation or removal.
SECTION 3.5. Resignation and Removal. Any officer may resign by delivering
a written resignation to the corporation at its principal office or to the Chief
Executive Officer (or, if there is no Chief Executive Officer, the President) or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event. Any officer may be removed at any time, with or without cause, by vote of
a majority of the entire number of directors then in office. Except as the Board
of Directors may otherwise determine, no officer who resigns or is removed shall
have any right to any compensation as an officer for any period following such
officer's resignation or removal, or any right to damages on account of such
removal, whether such officer's compensation be by the month or by the year or
otherwise, unless such compensation is expressly provided in a duly authorized
written agreement with the corporation.
SECTION 3.6. Vacancies. The Board of Directors may fill any vacancy
occurring in any office for any reason and may, in its discretion, leave
unfilled for such period as it may determine any offices other than those of
President, Treasurer and Secretary. Each such successor shall hold office for
the unexpired term of such officer's predecessor and until such officer's
successor is elected and qualified, or until such officer's earlier death,
resignation or removal.
SECTION 3.7. Chair of the Board and Vice Chair of the Board. The Board of
Directors may appoint a Chair of the Board. If the Board of Directors appoints a
Chair of the Board, the Chair shall perform such duties and possess such powers
as are assigned to the Chair by the Board of Directors. If the Board of
Directors appoints a Vice Chair of the Board, the Vice Chair shall, in the
absence or disability of the Chair of the Board, perform the duties and exercise
the powers of the Chair of the Board and shall perform such other duties and
possess such other powers as may from time to time be vested in the Vice Chair
by the Board of Directors.
SECTION 3.8. Chief Executive Officer and President. The Chief Executive
Officer or, if there is no Chief Executive Officer, the President, shall,
subject to the direction of the Board of Directors, have general charge and
supervision of the business of the corporation. Unless the Board of Directors
has designated the Chair of the Board or another officer as Chief Executive
Officer, the President shall be the Chief Executive Officer of the corporation.
The Chief Executive Officer and President shall perform such other duties and
have such other powers that the Board of Directors may from time to time
prescribe.
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SECTION 3.9. Vice Presidents. Any Vice President shall perform such duties
and possess such powers as the Board of Directors or the President may from time
to time prescribe. In the event of the absence, inability or refusal to act of
the Chief Executive Officer (or, if there is no Chief Executive Officer, the
President), the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the Chief Executive Officer (or, if there is no Chief Executive
Officer, the President) and when so performing shall have all the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
SECTION 3.10. Secretary and Assistant Secretaries. The Secretary shall
perform such duties and shall have such powers as the Board of Directors or the
Chief Executive Officer (or, if there is no Chief Executive Officer, the
President) may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to give notices of
all meetings of stockholders and special meetings of the Board of Directors, to
attend all meetings of stockholders and the Board of Directors and keep a record
of the proceedings, to maintain a stock ledger and prepare lists of stockholders
and their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents. Any Assistant
Secretary shall perform such duties and possess such powers as the Board of
Directors, the Chief Executive Officer (or, if there is no Chief Executive
Officer, the President) or the Secretary may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Secretary, the
Assistant Secretary (or if there shall be more than one, the Assistant
Secretaries in the order determined by the Board of Directors) shall perform the
duties and exercise the powers of the Secretary. In the absence of the Secretary
or any Assistant Secretary at any meeting of stockholders or directors, the
person presiding at the meeting shall designate a temporary secretary to keep a
record of the meeting.
SECTION 3.11. Treasurer and Assistant Treasurers. The Treasurer shall
perform such duties and shall have such powers as may from time to time be
assigned to the Treasurer by the Board of Directors or the Chief Executive
Officer (or, if there is no Chief Executive Officer, the President). In
addition, the Treasurer shall perform such duties and have such powers as are
incident to the office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of the
corporation, to deposit funds of the corporation in depositories selected in
accordance with these Bylaws, to disburse such funds as ordered by the Board of
Directors, to make proper accounts of such funds, and to render as required by
the Board of Directors statements of all such transactions and of the financial
condition of the corporation. The Assistant Treasurers shall perform such duties
and possess such powers as the Board of Directors, the Chief Executive Officer
(or, if there is no Chief Executive Officer, the President) or the Treasurer may
from time to time prescribe. In the event of the absence, inability or refusal
to act of the Treasurer, the Assistant Treasurer (or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Treasurer.
SECTION 3.12. Salaries. Officers of the corporation shall be entitled to
such salaries, compensation or reimbursement as shall be fixed or allowed from
time to time by the Board of Directors.
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ARTICLE IV
CAPITAL STOCK
SECTION 4.1. Issuance of Stock. Unless otherwise voted by the stockholders
and subject to the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the authorized
capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such
manner, for such consideration and on such terms as the Board of Directors may
determine.
SECTION 4.2. Certificates of Stock. Every holder of stock of the
corporation shall be entitled to have a certificate, in such form as may be
prescribed by law and by the Board of Directors, certifying the number and class
of shares owned by such stockholder in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the Chair or Vice
Chair, if any, of the Board of Directors, or the Chief Executive Officer (or, if
there is no Chief Executive Officer, the President) or a Vice President, and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the certificate may be a
facsimile. Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
Bylaws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
SECTION 4.3. Transfers. Except as otherwise established by rules and
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or the authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or by these Bylaws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the corporation in accordance with the requirements of these Bylaws.
SECTION 4.4. Lost, Stolen or Destroyed Certificates. The corporation may
issue a new certificate of stock in place of any previously issued certificate
alleged to have been lost, stolen, or destroyed, upon such terms and conditions
as the Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the giving of such
indemnity as the Board of Directors may require for the protection of the
corporation or any transfer agent or registrar.
SECTION 4.5. Record Date. The Board of Directors may fix in advance a date
as a record date for the determination of the stockholders entitled to notice of
or to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
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action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action to
which such record date relates. If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before the day on
which notice is given, or, if notice is waived, at the close of business on the
day before the day on which the meeting is held. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
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,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
ARTICLE V
NOTICES
SECTION 5.1. General; Electronic Transmission. Whenever, under the
provisions of statute or of the certificate of incorporation of this corporation
or these bylaws, notice is required to be given to any director or stockholder,
it shall be construed to mean written notice by (a) personal delivery, by
overnight courier, or by mail, addressed to such director or stockholder, at
such stockholder's address as it appears on the records of this corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be delivered (in the case of personal delivery and
overnight courier) or when the same shall be deposited in the United States mail
(in the case of mail), or (b) by electronic transmission as set forth below.
Notice to directors may also be given by telegram, telephone or electronic
transmission.
Without limiting the manner by which notice otherwise may be given
to the stockholders, any notice given by this corporation to the stockholders
shall be effective if given by a form of electronic transmission consented to by
the stockholder to whom the notice is given. Any such consent shall be revocable
by the stockholder by written notice to this corporation. Any such consent shall
be deemed revoked if (a) this corporation is unable to deliver by electronic
transmission two consecutive notices given by this corporation in accordance
with such consent and (b) such inability becomes known to the secretary, an
assistant secretary, transfer agent or other person responsible for giving such
notice; provided, however, that the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action. Notice given
by electronic transmission shall be deemed given (i) if by facsimile, when
directed to a number at which the stockholder has consented to receive notice,
(ii) if by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive notice, (iii) if by posting on an
electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the giving of such
separate notice, and (iv) if by any other form of electronic transmission, when
directed to the stockholder.
SECTION 5.2. Waiver of Notice. Whenever any notice whatsoever is required
to be given by law, by the Certificate of Incorporation or by these Bylaws, a
waiver of such notice either in writing signed by the person entitled to such
notice or such person's duly authorized attorney, or by telegraph, cable,
electronic transmission or any other available method, whether before, at or
after the time stated in such waiver, or the appearance of such person or
persons at such meeting in person or by proxy, shall be deemed equivalent to
such notice.
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ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1. Fiscal Year. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
SECTION 6.2. Corporate Seal. The corporate seal shall be in such form as
shall be approved by the Board of Directors.
SECTION 6.3. Voting of Securities. Except as the directors may otherwise
designate, the Chief Executive Officer (or, if there is no Chief Executive
Officer, the President) or Treasurer may waive notice of, and act as, or appoint
any person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders of any other corporation or organization, the securities of which
may be held by this corporation.
SECTION 6.4. Evidence of Authority. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
SECTION 6.5. Certificate of Incorporation. All references in these Bylaws
to the Certificate of Incorporation shall be deemed to refer to the Certificate
of Incorporation of the corporation, as amended and in effect from time to time.
SECTION 6.6. Transactions with Interested Parties. No contract or
transaction between the corporation and one or more of the directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of the directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or a
committee of the Board of Directors which authorizes the contract or transaction
or solely because his, her or their votes are counted for such purpose, if:
(a) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum;
(b) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
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(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
SECTION 6.7. Severability. Any determination that any provision of these
Bylaws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these Bylaws.
SECTION 6.8. Pronouns. All pronouns used in these Bylaws shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE VII
AMENDMENT
SECTION 7.1. By the Board of Directors. These Bylaws may be altered,
amended or repealed or new bylaws may be adopted by the affirmative vote of a
majority of the directors present at any regular or special meeting of the Board
of Directors at which a quorum is present.
SECTION 7.2. By the Stockholders. Except as otherwise provided in Section
7.3, these Bylaws may be altered, amended or repealed or new bylaws may be
adopted by the affirmative vote of the holders of a majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to vote
at any regular or special meeting of stockholders, provided notice of such
alteration, amendment, repeal or adoption of new bylaws shall have been stated
in the notice of such regular or special meeting.
SECTION 7.3. Certain Provisions. Notwithstanding any other provision of
law, the Certificate of Incorporation or these Bylaws, and notwithstanding the
fact that a lesser percentage may be specified by law, the affirmative vote of
the holders of at least sixty-seven percent (67%) of the shares of the capital
stock of the corporation issued and outstanding and entitled to vote shall be
required to amend or repeal, or to adopt any provision inconsistent with Section
1.3, Section 1.10, Section 1.11, Section 1.12, Section 1.13, Article II or
Article VII of these Bylaws.
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AMENDMENT TO AMENDED AND RESTATED BYLAWS
OF
UNITED NATURAL FOODS, INC.,
A DELAWARE CORPORATION
1. The Amended and Restated Bylaws (the "Bylaws") of United Natural Foods,
Inc., a Delaware corporation (the "Company"), are hereby amended by amending and
restating Section 1.9 of the Bylaws in its entirety to read as follows:
"SECTION 1.9. Action at Meeting. When a quorum is present at any
meeting, the holders of a majority of the stock present or represented and
voting on a matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class, the holders of a
majority of the stock of that class present or represented and voting on a
matter) shall decide any matter to be voted upon by the stockholders at such
meeting, except when a different vote is required by express provision of law,
the Certificate of Incorporation or these Bylaws. Except as provided in Article
II, Section 2.6 of these Bylaws, each director shall be elected by the vote of
the majority of the votes cast with respect to that director at any meeting for
the election of directors at which a quorum is present, provided that if the
number of nominees exceeds the number of directors to be elected, the directors
shall be elected by the vote of a plurality of the shares represented in person
or by proxy at any such meeting and entitled to vote on the election of
directors. For purposes of this Section 1.9, a majority of the votes cast means
that the number of shares voted "for" a director must exceed the number of votes
cast against that director. If a nominee who already serves as a director is not
elected, such director shall offer to tender his or her resignation to the
Board. The Nominating and Governance Committee will make a recommendation to the
Board on whether to accept or reject the resignation, or whether other action
should be taken. The Board will act on the Committee's recommendation and
publicly disclose its decision and the rationale behind it within 90 days from
the date of the certification of the election results."
2. This Amendment to the Bylaws of the Company shall be effective as of
September 13, 2007.