Attached files
Exhibit 3
AMENDED
AND RESTATED BYLAWS
OF
CABELA’S
INCORPORATED
ARTICLE
1
OFFICES
Section
1. The registered office of the corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section
2. 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.
ARTICLE
2
MEETINGS
OF STOCKHOLDERS
Section
1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
Board of Directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any
other purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section
2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. At each annual meeting, the
stockholders shall elect directors to succeed those directors whose terms expire
in that year and shall transact such other business as may properly be brought
before the meeting.
Section
3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section
4. The officer who has charge of the stock ledger of the
corporation shall prepare and make available, at least ten 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, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place 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 thereof, and may be
inspected by any stockholder who is present.
Section
5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may only be called by the Chairman of the Board or the
president.
Section
6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not fewer than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section
7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section
8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, either the Chairman
of the Board or the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
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 that might have
been transacted at the meeting as originally notified. If the
adjournment is for more than thirty (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.
Section
9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such
question.
Section
10. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three (3) years from its date, unless the proxy provides for a longer
period.
Section
11. Only persons who are nominated in accordance with the
procedures set forth in these Bylaws shall be eligible to serve as
directors. Nominations for election to the Board of Directors must be
made (a) by the Board of Directors or by a committee appointed by the Board of
Directors for such purpose or (b) by any stockholder of any outstanding class of
capital stock of the corporation who is a stockholder of record at the time of
giving notice provided for in this Section 11, who is entitled to vote for the
election of directors at the meeting and who complies with the notice procedures
set forth in this Section 11. Nominations by stockholders shall be
made by a timely notice in writing to the secretary of the
corporation. To be timely, a stockholder’s notice shall be delivered
to or mailed and received at the principal executive offices of the corporation
not less than one hundred twenty (120) days nor more than one hundred fifty
(150) days prior to the first anniversary of the preceding year’s annual meeting
of stockholders; provided, however, that in the event that the date of the
annual meeting is advanced more than thirty (30) days prior to such anniversary
date or delayed more than sixty (60) days after such anniversary date then to be
timely such notice must be received by the corporation no later than the later
of one hundred thirty (130) days prior to the date of such annual meeting or ten
(10) days following the day on which the date of such annual meeting is first
publicly announced by the corporation. For purposes of these Bylaws,
“publicly announced” shall mean disclosure in a press release reported by a
national news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. Such notification shall set
forth:
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(a) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director:
i. the
name, age, residence address and business address of each proposed
nominee;
ii. the
principal occupation or employment, the name, type of business and address of
the corporation or other organization in which such employment is carried on of
each proposed nominee;
iii. the
amount of stock of the corporation owned beneficially, either directly or
indirectly, by each proposed nominee;
iv. a
description of any arrangement or understanding of each proposed nominee and any
other person regarding future employment or any future transaction to which the
corporation will or may be a party; and
v. any
other information concerning the nominee that must be disclosed regarding
nominees in proxy solicitations pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended, and the rules under such section (including
such person’s written consent to being named in the proxy statement as a nominee
and to serving as a director if elected).
(b)
as to the stockholder giving the notice (the “Proponent”):
i. the
name and address of the Proponent, and of any holder of record of the
Proponent’s shares as they appear on the corporation’s books;
ii. the
class and number of shares of the corporation which are owned by the Proponent
(beneficially and of record) and owned by any holder of record of the
Proponent’s shares, as of the date of the Proponent’s notice, and a
representation that the Proponent will notify the corporation in writing of the
class and number of such shares owned of record and beneficially as of the
record date for the meeting promptly following the later of the record date or
the date notice of the record date is first publicly announced;
iii. a
description of any agreement, arrangement or understanding with respect to such
nomination between or among the Proponent and any of its affiliates or
associates, and any others (including their names) acting in concert with any of
the foregoing, and a representation that the Proponent will notify the
corporation in writing of any such agreement, arrangement or understanding in
effect as of the record date for the meeting promptly following the later of the
record date or the date notice of the record date is first publicly
announced;
iv. a
description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the
Proponent’s notice by, or on behalf of, the Proponent or any of its affiliates
or associates, the effect or intent of which is to mitigate loss to, manage risk
or benefit of share price changes for, or increase or decrease the voting power
of the Proponent or any of its affiliates or associates with respect to shares
of stock of the corporation, and a representation that the Proponent will notify
the corporation in writing of any such agreement, arrangement or understanding
in effect as of the record date for the meeting promptly following the later of
the record date or the date notice of the record date is first publicly
announced;
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v. a
representation that the Proponent is a holder of record or beneficial owner of
shares of the corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; and
vi. a
representation whether the Proponent intends to deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the corporation’s
outstanding capital stock required to approve the nomination and/or otherwise to
solicit proxies from stockholders in support of the nomination.
The
presiding officer of the meeting shall have the authority to determine and
declare to the meeting that a nomination not preceded by notification made in
accordance with the foregoing procedure shall be
disregarded. Notwithstanding the foregoing provisions of this Section
11, a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section
11.
To be
eligible to be a nominee for election or reelection as a director of the
corporation, a person nominated by a stockholder must deliver (in accordance
with the time periods prescribed for delivery of notice set forth in this
Section 11) to the secretary of the corporation at the principal executive
offices of the corporation a written questionnaire with respect to the
background and qualification of such person and the background of any other
person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the secretary upon written request) and a
written representation and agreement (in the form provided by the secretary upon
written request) that such person (i) is not and will not become a party to (A)
any agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such person, if
elected as a director of the corporation, will act or vote on any issue or
question (a “Voting Commitment”) that has not been disclosed to the corporation
or (B) any Voting Commitment that could limit or interfere with such person’s
ability to comply, if elected as a director of the corporation, with such
person’s fiduciary duties under applicable law, (ii) is not and will not become
a party to any agreement, arrangement or understanding with any person or entity
other than the corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a
director that has not been disclosed therein, and (iii) in such person’s
individual capacity and on behalf of any person or entity on whose behalf the
nomination is being made, would be in compliance, if elected as a director of
the corporation, and will comply with, applicable law and all applicable
publicly disclosed corporate governance, conflict of interest, corporate
opportunities, confidentiality and stock ownership and trading policies and
guidelines of the corporation.
Section
12. At any meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting (a) pursuant to
the corporation’s notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the corporation who is a stockholder of
record at the time of giving of the notice provided for in this Bylaw, who shall
be entitled to vote at such meeting and who complies with the notice procedures
set forth in this Bylaw.
For
business to be properly brought before any meeting by a stockholder pursuant to
clause (c) above of this Section 12, the stockholder shall have given timely
notice thereof in writing to the secretary of the corporation.
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To be
timely, a stockholder’s notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than one hundred
twenty (120) days nor more than one hundred fifty (150) days prior to the first
anniversary of the preceding year’s annual meeting of stockholders; provided,
however, that in the event that the date of the annual meeting is advanced more
than thirty (30) days prior to such anniversary date or delayed more than sixty
(60) days after such anniversary date then to be timely such notice must be
received by the corporation no later than the later of one hundred thirty (130)
days prior to the date of such annual meeting or ten (10) days following the day
on which the date of such annual meeting is first publicly announced 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) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting;
(b) the
name and address, as they appear on the corporation’s books, of the stockholder
proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made;
(c) the
class and number of shares of the corporation which are owned beneficially and
of record by such stockholder of record, and by the beneficial owner, if any, on
whose behalf of the proposal is made as of the date of the stockholder’s notice,
and a representation that such stockholder will notify the corporation in
writing of the class and number of such shares owned of record and beneficially
as of the record date for the meeting promptly following the later of the record
date or the date notice of the record date is first publicly
announced;
(d) any
material interest of such stockholder of record and the beneficial owner, if
any, on whose behalf the proposal is made in such business;
(e) a
description of any agreement, arrangement or understanding with respect to such
business between or among the stockholder proposing such business and any of its
affiliates or associates, and any others (including their names) acting in
concert with any of the foregoing, and a representation that the stockholder
will notify the corporation in writing of any such agreement, arrangement or
understanding in effect as of the record date for the meeting promptly following
the later of the record date or the date notice of the record date is first
publicly announced;
(f) a
description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the
stockholder’s notice by, or on behalf of, the stockholder proposing such
business or any of its affiliates or associates, the effect or intent of which
is to mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of the stockholder proposing such business
or any of its affiliates or associates with respect to shares of stock of the
corporation, and a representation that the stockholder proposing such business
will notify the corporation in writing of any such agreement, arrangement or
understanding in effect as of the record date for the meeting promptly following
the later of the record date or the date notice of the record date is first
publicly announced;
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(g) a
representation that the stockholder proposing such business is a holder of
record or beneficial owner of shares of the corporation entitled to vote at the
annual meeting and intends to appear in person or by proxy at the meeting to
propose such business;
(h) a
representation whether the stockholder proposing such business intends to
deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the corporation’s outstanding shares required to approve the
proposal and/or otherwise to solicit proxies from stockholders in support of the
proposal.
Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at a
meeting except in accordance with the procedures set forth in this Section
12. The presiding officer 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 procedures prescribed by this Section
12, and if such person should so determine, such person 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 12, a stockholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section
12.
Section
13. The stockholders of the corporation may not take action by
written consent without a meeting but must take any such actions at a duly
called annual or special meeting in accordance with these Bylaws and the
certificate of incorporation.
ARTICLE
3
DIRECTORS
Section
1. The number of directors of this corporation that shall
constitute the whole board shall be determined by resolution of the Board of
Directors; provided, however, that no decrease in the number of directors shall
have the effect of shortening the term of an incumbent
director. Except as provided in Section 2 of this Article, each
director shall be elected by the vote of the majority of the votes cast with
respect to the 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 director nominees shall be elected by a plurality
of the votes cast. For purposes of this Section 1, 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. The Board of
Directors has established procedures under which any director who is not elected
shall offer to tender his or her resignation to the Board of
Directors. The Nominating and Corporate Governance Committee will
make a recommendation to the Board of Directors on whether to accept or reject
the resignation, or whether other action should be taken. The Board
of Directors 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.
If a
director’s resignation is accepted by the Board of Directors pursuant to this
Section 1, or if a nominee for director is not elected and the nominee is
not an incumbent director, then the Board of Directors may fill the resulting
vacancy pursuant to the provisions of Section 2 of this Article or may
decrease the size of the Board of Directors pursuant to this Section
1. All directors shall be of one class and shall hold office until
the next election of directors and until their successors are duly elected and
qualified or until earlier resignation or removal.
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Section
2. Vacancies 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, even if less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
election of directors and until their successors are duly elected and qualified
or until earlier resignation or removal. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
Section
3. The business of the corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these bylaws directed or required
to be exercised or done by the stockholders.
MEETINGS
OF THE BOARD OF DIRECTORS
Section
4. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section
5. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the
failure of the stockholders to fix the time or place of such first meeting of
the newly elected Board of Directors, or in the event such meeting is not held
at the time and place so fixed by the stockholders, the meeting may be held at
such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section
6. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section
7. Special meetings of the Board of Directors may be called by
the Chairman of the Board or the president on twelve (12) hours’ notice to each
director either personally or by telephone, telegram, facsimile or electronic
mail; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of a majority of the Board of
Directors unless the Board of Directors consists of only one director, in which
case special meetings shall be called by the Chairman of the Board or the
president in like manner and on like notice on the written request of the sole
director. A written waiver of notice, signed by the person entitled
thereto, whether before or after the time of the meeting stated therein, shall
be deemed equivalent to notice.
Section
8. At all meetings of the Board of Directors a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
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Section
9. 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 or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section
10. 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 any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES
OF DIRECTORS
Section
11. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one (1) or more committees, each
committee to consist of one (1) or more of the directors of the
corporation. The board may designate one (1) 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
thereof present at any meeting and not disqualified from voting, whether or not
he/she or they 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 that may
require it; but no such committee shall have the power or authority in reference
to amending the certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation’s property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the bylaws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section
12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
COMPENSATION
OF DIRECTORS
Section
13. Unless otherwise restricted by the certificate of
incorporation or these Bylaws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
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RESIGNATION
AND REMOVAL OF DIRECTORS
Section
14. Any director may resign at any time, such resignation to
be made in writing and to take effect from the time of its receipt by the
corporation, unless some future time be fixed in the resignation and in that
case from that time. Except as provided in Section 1 of this Article,
the acceptance of a resignation shall not be required to make it
effective.
Section
15. A director may be removed from office with or without
cause by the affirmative vote of the holders of at least a majority of the
outstanding voting stock of the corporation entitled to vote at an election of
directors.
ARTICLE
4
NOTICES
Section
1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice (except as provided in Section 7 of Article III of these Bylaws), but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his/her address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telephone, telegram,
facsimile or electronic mail.
Section
2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE
5
OFFICERS
Section
1. The officers of the corporation shall be chosen by the
Board of Directors and shall be at least a president, chief financial officer
and a secretary. The Board of Directors may elect from among its
members a Chairman of the Board and one or more Vice Chairmen of the
Board. The Board of Directors may also choose a chief operating
officer and one or more vice presidents and assistant
secretaries. Any number of offices may be held by the same person,
unless the certificate of incorporation or these Bylaws otherwise
provide.
Section
2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, chief financial officer
and a secretary and may also choose a chief operating officer, vice presidents
or assistant secretaries.
Section
3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section
4. The salaries of all officers of the corporation shall be
fixed by the Board of Directors or any committee established by the Board of
Directors for such purpose. The salaries of agents of the corporation
shall, unless fixed by the Board of Directors, be fixed by the president or any
vice president of the corporation.
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Section
5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy
occurring in any office of the corporation shall be filled by the Board of
Directors.
THE
CHAIRMAN AND VICE CHAIRMEN OF THE BOARD
Section
6. The Chairman of the Board, if any, shall preside at all
meetings of the Board of Directors and of the stockholders at which he/she shall
be present. He/she shall have and may exercise such powers as are,
from time to time, assigned to him/her by the Board and as may be provided by
law.
Section
7. In the absence of the Chairman of the Board, one of the
Vice Chairmen of the Board, if any, shall preside at all meetings of the Board
of Directors and of the stockholders at which he/she shall be
present. He/she shall have and may exercise such powers as are, from
time to time, assigned to him by the Board and as may be provided by
law.
THE
PRESIDENT AND VICE PRESIDENTS
Section
8. The president shall be the chief executive officer of the
corporation unless such title is assigned to another officer of the corporation;
and in the absence of the Chairman of the Board and the Vice Chairmen of the
Board, he/she shall preside at all meetings of the stockholders and the Board of
Directors; he/she shall have general and active management of the business of
the corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section
9. The president or any vice president shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation.
Section
10. In the absence of the president or in the event of his/her
inability or refusal to act, the vice president, if any, (or in the event there
be more than one vice president, the vice presidents in the order designated by
the directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice presidents shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe. One or more vice presidents may be designated as an
executive vice president or a senior vice president.
THE
SECRETARY AND ASSISTANT SECRETARY
Section
11. The secretary or his or her designee shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record all the proceedings of the meetings of the corporation and of the Board
of Directors and shall cause such records to be kept in a book kept for that
purpose and shall perform like duties for the standing committees when
required. He/she shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or president, under whose supervision he/she shall be. He/she shall
have custody of the corporate seal of the corporation and he/she, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his/her signature or by
the signature of such assistant secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the corporation
and to attest the affixing by his/her signature.
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Section
12. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his/her inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
THE
CHIEF FINANCIAL OFFICER
Section
13. The chief financial officer shall have custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors.
Section
14. He/she shall disburse the funds of the corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his/her transactions as chief financial officer and of the financial
condition of the corporation.
Section
15. Along with the president or any vice president, he/she
shall be authorized to execute bonds, mortgages and other contracts requiring a
seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation.
Section
16. If required by the Board of Directors, he/she shall give
the corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his/her office and for the
restoration to the corporation, in case of his/her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his/her possession or under his/her control
belonging to the corporation.
ARTICLE
6
CERTIFICATE
OF STOCK
Section
1. Shares of the capital stock of the corporation may be
certificated or uncertificated as provided under the General Corporation Law of
Delaware. Every holder of stock in the corporation shall, upon
request, be entitled to have a certificate, signed by, or in the name of the
corporation by, the Chairman of the Board of Directors, or the president or a
vice president and the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by him/her in the
corporation.
The
corporation may issue partly paid shares. Upon the face or back of
the certificates issued to represent any such partly paid shares, or upon the
books and records of the corporation in case of uncertificated partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
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If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of any certificate that the corporation may issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of any certificate that
the corporation may issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Within a reasonable time after the issuance or
transfer of uncertificated stock, the corporation shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to Section 151, 156, 202 or 218 of the
General Corporation Law of Delaware or with respect to Section 151 of the
General Corporation Law of Delaware a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of uncertificated stock and the rights and obligations of the holders of
certificates representing stock of the same class and series shall be
identical.
Any of or
all the signatures on any certificate may be facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he/she were such officer, transfer
agent or registrar at the date of issue.
LOST
CERTIFICATES
Section
2. The Board of Directors may direct (i) a new certificate or
certificates or (ii) uncertificated shares be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of (i) a new certificate or
certificates or (ii) uncertificated shares, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his/her
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER
OF STOCK
Section
3. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate or evidence of the
issuance of uncertificated shares to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Upon the
receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the stockholder entitled thereto and the transaction shall be recorded on the
books of the corporation.
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FIXING
RECORD DATE
Section
4. 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, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or 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, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other
action. 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.
REGISTERED
STOCKHOLDERS
Section
5. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE
7
GENERAL
PROVISIONS
DIVIDENDS
Section
1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the certificate of
incorporation.
Section
2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purposes as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section
3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
FISCAL
YEAR
Section
4. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
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SEAL
Section
5. The Board of Directors may adopt a corporate seal having
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 or affixed or reproduced or
otherwise.
INDEMNIFICATION
Section
6. The corporation shall, to the fullest extent authorized
under the laws of the State of Delaware, as those laws may be amended and
supplemented from time to time, indemnify any director or officer made, or
threatened to be made, a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of being a director or officer
of the corporation or a predecessor corporation or, at the corporation’s
request, a director or officer of another corporation, provided, however, that
the corporation shall indemnify any such agent in connection with a proceeding
initiated by such agent only if such proceeding was authorized by the Board of
Directors of the corporation. The indemnification provided for in
this Section 6 shall: (i) not be deemed exclusive of any other rights to which
those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in their
official capacities and as to action in another capacity while holding such
office, (ii) continue as to a person who has ceased to be a director or officer,
and (iii) inure to the benefit of the heirs, executors and administrators of
such a person. The corporation’s obligation to provide
indemnification under this Section 6 shall be offset to the extent of any other
source of indemnification or any otherwise applicable insurance coverage under a
policy maintained by the corporation or any other person.
Expenses
incurred by a director or officer of the corporation in defending a civil or
criminal action, suit or proceeding by reason of the fact that he/she is or was
a director or officer of the corporation (or was serving at the corporation’s
request as a director or officer of another corporation) 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 such director or
officer to repay such amount if it shall ultimately be determined that he/she is
not entitled to be indemnified by the corporation as authorized by relevant
sections of the General Corporation Law of Delaware. Notwithstanding
the foregoing, the corporation shall not be required to advance such expenses to
an agent who is a party to an action, suit or proceeding brought by the
corporation and approved by a majority of the Board of Directors of the
corporation which alleges willful misappropriation of corporate assets by such
agent, disclosure of confidential information in violation of such agent’s
fiduciary or contractual obligations to the corporation or any other willful and
deliberate breach in bad faith of such agent’s duty to the corporation or its
stockholders.
The
foregoing provisions of this Section 6 shall be deemed to be a contract between
the corporation and each director and officer who serves in such capacity at any
time while this bylaw is in effect, and any repeal or modification thereof shall
not affect any rights or obligations then existing with respect to any state of
facts then or theretofore existing or any action, suit or proceeding theretofore
or thereafter brought based in whole or in part upon any such state of
facts.
The Board
of Directors in its discretion shall have power on behalf of the corporation to
indemnify any person, other than a director or officer, made a party to any
action, suit or proceeding by reason of the fact that he, his/her testator or
intestate, is or was an employee of the corporation.
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To assure
indemnification under this Section 6 of all directors, officers and employees
who are determined by the corporation or otherwise to be or to have been
“fiduciaries” of any employee benefit plan of the corporation which may exist
from time to time, Section 145 of the General Corporation Law of Delaware shall,
for the purposes of this Section 6, be interpreted as follows: an “other
enterprise” shall be deemed to include such an employee benefit plan, including
without limitation, any plan of the corporation which is governed by the Act of
Congress entitled “Employee Retirement Income Security Act of 1974,” as amended
from time to time; the corporation shall be deemed to have requested a person to
serve an employee benefit plan where the performance by such person of his/her
duties to the corporation also imposes duties on, or otherwise involves services
by, such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on a person with respect to an employee benefit plan pursuant to
such Act of Congress shall be deemed “fines.”
ARTICLE
8
AMENDMENTS
Section
1. These Bylaws may be altered, amended or repealed or new
bylaws may be adopted by the affirmative vote of holders of at least 66-2/3% of
the outstanding voting stock of the corporation. These Bylaws may
also be altered, amended or repealed or new bylaws may be adopted by the Board
of Directors, when such power is conferred upon the Board of Directors by the
certificate of incorporation. The foregoing may occur at any regular
meeting of the stockholders or of the Board of Directors or at any special
meeting of the stockholders or of the Board of Directors, subject to the notice
requirements set forth herein. If the power to adopt, amend or repeal
bylaws is conferred upon the Board of Directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal bylaws.
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CERTIFICATE
OF ADOPTION BY THE
SECRETARY
OF
CABELA’S
INCORPORATED
The
undersigned, Brent LaSure, hereby certifies that he is the duly elected and
acting Secretary of Cabela’s Incorporated, a Delaware corporation (the
“Corporation”), and that the Amended and Restated Bylaws attached hereto
constitute the Bylaws of said Corporation as duly adopted by the Board of
Directors of the Corporation and as in effect on the date hereof.
IN
WITNESS WHEREOF, the undersigned has hereunto subscribed his name
this 15th day
of December, 2009.
/s/ Brent LaSure | |
Brent
LaSure, Secretary
|
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