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8-K - FORM 8-K - RENT A CENTER INC DE | d84891e8vk.htm |
EX-99.1 - EX-99.1 - RENT A CENTER INC DE | d84891exv99w1.htm |
Exhibit 3.1
RENT-A-CENTER, INC.
AMENDED AND RESTATED BYLAWS
AMENDED AND RESTATED BYLAWS
DATED SEPTEMBER 28, 2011
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings of Stockholders. The annual meeting of the stockholders of
Rent-A-Center, Inc. (the Corporation ) shall be held on such day as may be designated from time
to time by the Board of Directors and stated in the notice of the meeting, and on any subsequent
day or days to which such meeting may be adjourned, for the purposes of electing directors and of
transacting such other business as may properly come before the meeting. The Board of Directors
shall designate the place and time for the holding of such meeting, and not less than ten (10) days
nor more than sixty (60) days notice shall be given to the stockholders of the time and place so
fixed. If the day designated therein is a legal holiday, the annual meeting shall be held on the
first succeeding day which is not a legal holiday. If for any reason the annual meeting shall not
be held on the day designated therein, the Board of Directors shall cause the annual meeting to be
held as soon thereafter as may be convenient.
Section 2. Special Meetings of Stockholders. Special meetings of the stockholders may
be called at any time by the Board of Directors pursuant to a resolution approved by a majority of
the entire Board of Directors or majority of an entire committee of the Board of Directors. The
Board of Directors shall designate the place and time for the holding of such meeting, and shall
provide, unless otherwise required by law, not less than ten (10) days nor more than sixty (60)
days notice shall be given to the stockholders of the time and place so fixed.
Section 3. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) At any annual meeting of the stockholders, only such nominations of persons for election
to the Board of Directors shall be made, and only such other business shall be conducted or
considered, as shall have been properly brought before the meeting. Nominations of persons for
election to the Board of Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders only (a) as specified in the
Corporations notice of meeting (or any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly made at the annual meeting, by or at the direction of
the Board of Directors or (c) otherwise properly requested to be brought before the annual meeting
by a stockholder of the Corporation who (i) was a stockholder of record of the Corporation at the
time the notice provided for in this Section 3 of Article I was delivered to the Secretary of the
Corporation and at the time of the annual meeting, (ii) shall be entitled to vote at such annual
meeting, and (iii) complies with the provisions of these Bylaws set forth in Section 3 and Section
4 of Article I as to such nomination or business. Clause (c) shall be the exclusive means for a
stockholder to make nominations or other business proposals before an annual meeting of
stockholders (other than matters properly brought under Rule 14a-8 under the
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Securities Exchange Act of 1934, as amended (the Exchange Act) and set forth in the
Corporations notice of meeting).
(2) Without qualification or limitation, subject to Section 3(C)(4) of these Bylaws, for any
nominations or any other business to be properly brought before an annual meeting by a stockholder
pursuant to Section 3(A)(1)(c) of Article I, the stockholder, in addition to any other applicable
requirements, must have given timely notice thereof (including, in the case of nominations, the
completed and signed questionnaire, representation and agreement required by Section 4 of these
Bylaws) and timely updates and supplements thereof in writing to the Secretary of the Corporation
and any such proposed business must constitute a proper matter for stockholder action. To be
timely, a stockholders notice must be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th)
day prior to the first anniversary of the preceding years annual meeting (provided,
however, that in the event that the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after such anniversary date, notice by the stockholder
must be so delivered not earlier than the close of business on the one hundred twentieth (120th)
day prior to the date of such annual meeting and not later than the close of business on the later
of the ninetieth (90th) day prior to the date of such annual meeting or, if the first public
announcement of the date of such annual meeting is less than one hundred (100) days prior to the
date of such annual meeting, the tenth (10th) day following the day on which public announcement of
the date of such meeting is first made by the Corporation. In no event shall any adjournment or
postponement of an annual meeting, or the public announcement thereof, commence a new time period
(or extend any time period) for the giving of a stockholders notice as described above. To be in
proper form, a stockholders notice to the Secretary of the Corporation (whether given pursuant to
this Section 3(A)(2) of Article I or Section 3(B) of Article I) shall set forth:
(a) as to each person, if any, whom the stockholder proposes to nominate for election or
reelection to the Board of Directors (i) all information relating to such person that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors in a contested election pursuant to and in
accordance with Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder, (ii) such persons written consent to being named in the proxy statement as a nominee
and to serving as a director if elected, (iii) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among such stockholder and
beneficial owner, if any, and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates
and associates, or others acting in concert therewith, on the other hand, including, without
limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated
under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose
behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in
concert therewith, were the registrant for purposes of such rule and the nominee were a director
or executive officer of such registrant; and (iv) with respect to each person, if any, whom the
stockholder proposes to nominate for election or reelection to the Board
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of Directors, include a completed and signed questionnaire, representation and agreement
required by Section 4 of this Article I;
(b) if the notice relates to any business other than the nomination of a director or directors
that the stockholder proposes to bring before the meeting, (i) a brief description of the business
desired to be brought before the annual meeting, (ii) the reasons for conducting such business at
the annual meeting, (iii) the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business includes a proposal to
amend the Bylaws of the Corporation, the language of the proposed amendment), (iv) any material
interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the
proposal is made, and (v) a description of all agreements, arrangements and understandings between
such stockholder and beneficial owner, if any, and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder; and
(c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder, as they appear on
the Corporations books, of such beneficial owner, if any, and of their respective affiliates,
associates or others acting in concert therewith, (ii)(A) the class or series and number of shares
of the Corporation that are, directly or indirectly, owned beneficially and of record by such
stockholder, such beneficial owner and of their respective affiliates, associates or others acting
in concert therewith, (B) any option, warrant, convertible security, stock appreciation right, or
similar right with an exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class or series of shares of the Corporation or with a value derived in whole
or in part from the value of any class or series of shares of the Corporation, or any derivative or
synthetic arrangement having the characteristics of a long position in any class or series of
shares of the Corporation, or any contract, derivative, swap or other transaction or series of
transactions designed to produce economic benefits and risks that correspond substantially to the
ownership of any class or series of shares of the Corporation, including where the value of such
contract, derivative, swap or other transaction or series of transactions is determined by
reference to the price, value or volatility of any class or series of shares of the Corporation,
whether or not such instrument, contract or right shall be subject to settlement in shares of the
underlying class or series of capital stock of the Corporation, through the delivery of cash or
other property, or otherwise, and without regard of whether the stockholder of record, the
beneficial owner, if any, or any affiliates or associates or others acting in concert therewith,
may have entered into transactions that hedge or mitigate the economic effect of such instrument,
contract or right or any other direct or indirect opportunity to profit or share in any profit
derived from any increase or decrease in the value of shares of the Corporation (any of the
foregoing, a Derivative Instrument) directly or indirectly owned beneficially by such
stockholder, the beneficial owner, if any, or of any affiliates, associates or others acting in
concert therewith, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to
which such stockholder has a right to vote any class or series of shares of the Corporation, (D)
any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or
similar so-called stock borrowing agreement or arrangement, engaged in, directly or indirectly,
by such stockholder, the purpose or effect of which is to mitigate loss to, reduce the economic
risk (of ownership or otherwise) of any class or series of the shares of the Corporation by, manage
the risk of share price changes for, or increase or
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decrease the voting power of, such stockholder with respect to any class or series of the
shares of the Corporation, or which provides, directly or indirectly, the opportunity to profit or
share in any profit derived from any decrease in the price or value of any class or series of the
shares of the Corporation (any of the foregoing, Short Interests), (E) any rights to dividends on
the shares of the Corporation owned beneficially by such stockholder that are separated or
separable from the underlying shares of the Corporation, (F) any proportionate interest in shares
of the Corporation or Derivative Instrument held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner of such general or limited partnership, and (G) any
performance-related fees (other than an asset-based fee) that such stockholder is entitled to based
on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if
any, including without limitation any such interests held by members of such stockholders
immediate family sharing the same household, (iii) any other information relating to such
stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy
statement and form of proxy or other filings required to be made in connection with solicitation of
proxies for, as applicable, the proposal and/or for the election of directors in a contested
election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder, (iv) a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, and (v) a representation whether the stockholder or
the beneficial owner, if any, intends or is part of a group that intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the Corporations
outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (b)
otherwise to solicit proxies from stockholders in support of such proposal or nomination. The
Corporation may require any proposed nominee to furnish such other information as it may reasonably
require (i) to determine the eligibility of such proposed nominee to serve as a director of the
Corporation, including with respect to qualifications established by any committee of the Board;
(ii) to determine whether such nominee qualifies as an independent director or audit committee
financial expert under applicable law, securities exchange rule or regulation, or any
publicly-disclosed corporate governance guideline or committee charter of the Corporation; and
(iii) that could be material to a reasonable stockholders understanding of the independence and
qualifications, or lack thereof, of such nominee.
(3) In addition, to be timely, a stockholders notice shall further be updated and
supplemented, if necessary, so that the information provided or required to be provided in such
notice shall be true and correct as of the record date for the meeting and as of the date that is
ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such
update and supplement shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not later than five (5) business days after the record date
for the meeting in the case of the update and supplement required to be made as of the record date,
and not later than eight (8) business days prior to the date for the meeting, any adjournment or
postponement thereof in the case of the update and supplement required to be made as of ten (10)
business days prior to the meeting or any adjournment or postponement thereof.
(4) Notwithstanding anything in the second and third sentence of paragraph (A)(2) of this
Section 3 to the contrary, in the event that the number of directors to be
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elected to the Board of Directors is increased by the Board of Directors, and there is no
public announcement by the Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors at least one hundred (100) days prior to the first
anniversary of the preceding years annual meeting, a stockholders notice required by this Section
3 shall also be considered timely, but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (1) by or at the direction of the Board of Directors or (2)
provided that the Board of Directors has determined that the directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 3 is delivered to the Secretary of the Corporation at the time
of the special meeting, who is entitled to vote at the meeting and who complies with the provisions
of these Bylaws set forth in Section 3 and Section 4 of Article I as to such nomination. The
immediately preceding sentence shall be the exclusive means for a stockholder to make nominations
before a special meeting of stockholders (other than matters properly brought under Rule 14a-8
under the Exchange Act and set forth in the Corporations notice of meeting). Subject to Section
3(C)(4) of these Bylaws, in the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be) for election to such position(s) as specified in
the Corporations notice of meeting, provided that the stockholder gives timely notice in the same
manner as required by paragraph (A)(2) of this Section 3 with respect to any nomination (including
the completed and signed questionnaire, representation and agreement required by Section 4 of this
Article I) and timely updates and supplements the same in writing to the Secretary of the
Corporation. In order to be timely, a stockholders notice shall be delivered to the Secretary of
the Corporation at the principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to the date of such special meeting and not
later than the close of business on the later of the ninetieth (90th) day prior to the date of such
special meeting or, if the first public announcement of the date of such special meeting is less
than 100 days prior to the date of such special meeting, the tenth (10th) day following the day on
which public announcement is first made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting. In no event shall any adjournment
or postponement of a special meeting, or the public announcement thereof, commence a new time
period (or extend any time period) for the giving of a stockholders notice as described above. In
addition, to be timely, a stockholders notice shall further be updated and supplemented, if
necessary, so that the information provided or required to be provided in such notice shall be true
and correct as of the record date for the meeting and as of the date that is ten (10) business days
prior to the meeting or any adjournment or postponement thereof, and such update and supplement
shall be delivered to the Secretary of the Corporation at the principal executive offices of the
Corporation not later than five (5) business days after the record date for the meeting in the case
of the update and supplement required to be made as of the record date, and
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not later than eight (8) business days prior to the date for the meeting, any adjournment or
postponement thereof in the case of the update and supplement required to be made as of ten (10)
business days prior to the meeting or any adjournment or postponement thereof.
(C) General.
(1) Subject to Section 2 of Article II, only such persons who are nominated in accordance with
the procedures set forth in this Section 3 of Article I shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 3 of Article I. Except as
otherwise provided by law, the Certificate of Incorporation of the Corporation, as amended (the
Certificate of Incorporation) or these Bylaws, the Chairman of the meeting shall have the power
(a) to determine whether a nomination or any business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with the procedures set forth in this Section 3
of Article I and (b) if any proposed nomination or business was not made or proposed in compliance
with this Section 3 of Article I, to declare that no action shall be taken on such nomination or
other proposal and such nomination or other proposal shall be disregarded. Notwithstanding the
foregoing provisions of this Section 3 of Article I, unless otherwise required by law, if the
stockholder (or a qualified representative of the stockholder) does not appear at the annual or
special meeting of stockholders of the Corporation to present such nomination or proposed business,
such nomination shall be disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by the Corporation. For
purposes of this Section 3 of Article I, to be considered a qualified representative of the
stockholder, a person must be authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of
stockholders and such person must produce such writing or electronic transmission, or a reliable
reproduction of the writing or electronic transmission, at the meeting of the stockholders.
(2) For purpose of this Section 3 of Article I, public announcement shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press, or comparable 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 Exchange Act and the rules and regulations
promulgated thereunder.
(3) Notwithstanding the provisions of these Bylaws, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations thereunder with respect
to the matters set forth in these Bylaws; provided, however, that any references in
these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall
not limit the requirements applicable to nominations or proposals as to any other business to be
considered pursuant to Section 3 and Section 4 of these Bylaws.
(4) Nothing in this Section 3 and Section 4 of Article I shall be deemed to affect any rights
(a) of stockholders to request inclusion of proposals in the Corporations proxy statement pursuant
to Rule 14a-8 promulgated under the Exchange Act, or
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(b) of the holders of any series of Preferred Stock, if and to the extent provided for under
law, the Certificate of Incorporation or these Bylaws. Subject to Rule 14a-8 under the Exchange
Act, nothing in these Bylaws shall be construed to permit any stockholder, or give any stockholder
the right, to include or have disseminated or described in the Corporations proxy statement any
nomination of director or directors or any other business proposal.
Section 4. Submission of Questionnaire, Representation and Agreement. To be eligible
to be a nominee for election or reelection as a director of the Corporation, a person must deliver
(in accordance with the time periods prescribed for delivery of notice under Section 3 of Article I
of these Bylaws) to the Secretary 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 (A) is not and will not
become a party to (1) 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 (2) any Voting Commitment that could limit or interfere with
such persons ability to comply, if elected as a director of the Corporation, with such persons
fiduciary duties under applicable law, (B) 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 (C) in such persons 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 all applicable
corporate governance, conflict of interest, confidentiality and stock ownership and trading
policies and guidelines of the Corporation publicly disclosed from time to time.
Section 5. Place of Meetings. Every annual or special meeting of the stockholders
shall be held at such place within or without the State of Delaware as the Board of Directors may
designate, or, in the absence of such designation, at the registered office of the Corporation in
the State of Delaware.
Section 6. Notice of Meetings. Written notice of every meeting of the stockholders
shall be given by the Secretary of the Corporation to each stockholder of record entitled to vote
at the meeting, by placing such notice in the mail not less than ten (10) nor more than sixty (60)
days, prior to the day named for the meeting addressed to each stockholder at his or her address
appearing on the books of the Corporation or supplied by him or her to the Corporation for the
purpose of notice.
Section 7. Record Date. The Board of Directors may fix a date, not less than ten (10)
or more than sixty (60) days preceding the date of any meeting of stockholders, as a record date
for the determination of stockholders entitled to notice of, or to vote at, any such meeting. The
Board of Directors shall not close the books of the Corporation against transfers of shares during
the whole or any part of such period.
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Section 8. Proxies. The notice of every meeting of the stockholders may be accompanied
by a form of proxy approved by the Board of Directors in favor of such person or persons as the
Board of Directors may select.
Section 9. Quorum and Voting. A majority of the outstanding shares of stock of the
Corporation entitled to vote, present in person or represented by proxy, shall constitute a quorum
at any meeting of the stockholders, and the stockholders present at any duly convened meeting may
continue to do business until adjournment notwithstanding any withdrawal from the meeting of
holders of shares counted in determining the existence of a quorum. Each director shall be elected
by the vote of the majority of the votes cast with respect to the nominee at any meeting at which
directors are to be elected at which a quorum is present; provided, however, that the directors
shall be elected by the vote of a plurality of votes cast on the election of directors at any
meeting of stockholders for which (i) the Secretary of the Corporation receives a notice that a
stockholder has nominated a person for election to the Board of Directors in compliance with the
advance notice requirements for stockholder nominees for director set forth in Section 3(A)(2) and
Section 3(B) of these Bylaws, as applicable, and (ii) such nomination has not been withdrawn by
such stockholder on or prior to the tenth day preceding the date the Corporation first mails its
notice of meeting for such meeting to the stockholders. For purposes of this Section, a majority of
the votes cast means that the number of shares voted for a nominee must exceed the votes cast
against such nominees election. For all matters as to which no other voting requirement is
specified by the General Corporation Law of the State of Delaware, as amended (the General
Corporation Law), the Certificate of Incorporation, or these Bylaws, the affirmative vote required
for stockholder action shall be that of a majority of the shares present in person or represented
by proxy at the meeting (as counted for purposes of determining the existence of a quorum at the
meeting). In the case of a matter submitted for a vote of the stockholders as to which a
stockholder approval requirement is applicable under the stockholder approval policy of the Nasdaq
Stock Market, Inc. or any other exchange or quotation system on which the capital stock of the
Corporation is quoted or traded, the requirements of Rule 16b-3 under the Exchange Act or any
provision of the Internal Revenue Code, in each case for which no higher voting requirement is
specified by the General Corporation Law, the Certificate of Incorporation or these Bylaws, the
vote required for approval shall be the requisite vote specified in such stockholder approval
policy, Rule 16b-3 or Internal Revenue Code provision, as the case may be (or the highest such
requirement if more than one is applicable). For the ratification of the appointment of independent
public accountants (if submitted for a vote of the stockholders), the vote required for approval
shall be a majority of the votes cast on the matter.
Section 10. Adjournment. Any meeting of the stockholders may be adjourned from time to
time, without notice other than by announcement at the meeting at which such adjournment is taken,
and at any such adjourned meeting at which a quorum shall be present any action may be taken that
could have been taken at the meeting originally called; provided , that 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 adjourned meeting.
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ARTICLE II
BOARD OF DIRECTORS
Section 1. Number of Directors. The business, affairs and property of the Corporation
shall be managed by a board of directors divided into three classes as provided in the Certificate
of Incorporation of the Corporation. Unless otherwise provided by law, the number of directors
constituting the Board of Directors shall be determined from time to time by resolutions adopted by
a majority of the entire Board of Directors. Each director shall hold office for the full term to
which he shall have been elected and until his successor is duly elected and shall qualify, or
until his earlier death, resignation or removal. A director need not be a resident of the State of
Delaware or a stockholder of the Corporation.
Section 2. Vacancies. Except as provided in the Certificate of Incorporation of the
Corporation, newly created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation, disqualification,
removal or other cause shall be filled by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of Directors. Any director
elected in accordance with the preceding sentence shall hold office for the remainder of the full
term of the class of directors in which the new directorship was created or the vacancy occurred
and until such directors successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 3. Removal by Stockholders. No director of the Corporation shall be removed
from his office as a director by vote or other action of stockholders or otherwise except for
cause.
Section 4. Regular Meetings. Regular meetings of the Board of Directors shall be held
at such place or places within or without the State of Delaware, at such hour and on such day as
may be fixed by resolution of the Board of Directors, without further notice of such meetings. The
time or place of holding regular meetings of the Board of Directors may be changed by the Chairman
of the Board or the President by giving written notice thereof as provided in Section 6 of this
Article II.
Section 5. Special Meeting. Special meetings of the Board of Directors shall be held,
whenever called by the Chairman of the Board, the President, by a majority of the directors or by
resolution adopted by the Board of Directors, at such place or places within or without the State
of Delaware as may be stated in the notice of the meeting.
Section 6. Notice. Written notice of the time and place of, and general nature of the
business to be transacted at, all special meetings of the Board of Directors, and written notice of
any change in the time or place of holding the regular meetings of the Board of Directors, shall be
given to each director personally or by mail, e-mail or by telegraph, telecopier or similar
communication at least one day before the day of the meeting; provided, however , that notice of
any meeting need not be given to any director if waived by him in writing, or if he shall be
present at such meeting.
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Section 7. Quorum. A majority of the directors in office shall constitute a
quorum of the Board of Directors for the transaction of business, but a lesser number may adjourn
from day to day until a quorum is present.
Section 8. Voting. Except as otherwise provided herein or in the Certificate of
Incorporation of the Corporation, all decisions of the Corporations Board of Directors shall
require the affirmative vote of a majority of the directors of the Corporation then in office, or a
majority of the members of the Executive Committee of the Board of Directors, to the extent such
decisions may be lawfully delegated to the Executive Committee.
Section 9. Action by Written Consent. Any action which may be taken at a meeting of
the directors or of any committee thereof may be taken without a meeting if consent in writing
setting forth the action so taken shall be signed by all of the directors or members of such
committee as the case may be and shall be filed with the Secretary of the Corporation.
Section 10. Chairman. The Board of Directors may designate one or more of its number
to be Chairman of the Board and chairman of any committees of the Board and to hold such other
positions on the Board as the Board of Directors may designate.
ARTICLE III
COMMITTEES
Section 1. The Board of Directors may, by resolution adopted by a majority of the full Board
of Directors of the Corporation, designate from among its members one or more committees, each of
which shall be comprised of one or more of its members, and may designate one or more of its
members as alternate members of any committee, who may, subject to any limitations by the Board of
Directors of the Corporation, replace absent or disqualified members at any meeting of the
committee. Any such committee, to the extent provided in such resolution or in the Certificate of
Incorporation or these Bylaws, shall have and may exercise all of the authority of the Board of
Directors of the Corporation to the extent permitted by the General Corporation Law.
Section 2. The Board of Directors of the Corporation shall have the power at any time to
change the membership of any such committee and to fill vacancies in it. A majority of the number
of members of any such committee shall constitute a quorum for the transaction of business unless a
greater number of members is required by a resolution adopted by the Board of Directors of the
Corporation. The act of the majority of the members of a committee present at any meeting at which
a quorum is present shall be the act of the Committee, unless the act of a greater number is
required by a resolution adopted by the Board of Directors of the Corporation. Each such committee
may elect a chairman and appoint such subcommittees and assistants as it may deem necessary. Except
as otherwise provided by the Board of Directors of the Corporation, meetings of any committee shall
be conducted in accordance with these Bylaws. Any member of any such committee elected or appointed
by the Board of Directors of the Corporation may be removed by the Board of Directors of the
Corporation whenever in its judgment the best interests of the Corporation will be served thereby,
but such removal shall be without prejudice to the
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contract rights, if any, of the person so removed. Election or appointment of a member of a
committee shall not itself create contract rights.
Section 3. Any action taken by any committee of the Board of Directors shall be promptly
recorded in the minutes and filed with the Secretary of the Corporation.
ARTICLE IV
OFFICERS
Section 1. Designation and Removal. The officers of the Corporation shall consist of a
Chairman of the Board, Chief Executive Officer, President, Secretary, Treasurer, Chief Operating
Officer, Chief Financial Officer, one or more Vice Presidents, and such other officers as may be
named by the Board of Directors. Any number of offices may be held by the same person. All officers
shall hold office until their successors are elected or appointed, except that the Board of
Directors may remove any officer at any time at its discretion.
Section 2. Powers and Duties. The officers of the Corporation shall have such powers
and duties as generally pertain to their offices, except as modified herein or by the Board of
Directors, as well as such powers and duties as from time to time may be conferred by the Board of
Directors. The Chairman of the Board shall have such duties as may be assigned to him by the Board
of Directors and shall preside at meetings of the Board and at meetings of the stockholders. In
addition to the other powers and duties conferred upon the Chief Executive Officer by the Board of
Directors, the Chief Executive Officer of the Corporation shall have the duty and responsibility
for the general supervision over the business, affairs, and property of the Corporation.
ARTICLE V
SEAL
The seal of the Corporation shall be in such form as the Board of Directors shall prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented by certificates of stock;
provided, however, that the Board of Directors may provide by resolution or resolutions that some
or all of any or all classes or series of the Corporations stock shall be uncertificated shares;
provided, further , that any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by certificates and upon
request, every holder of uncertificated shares shall be entitled to have a certificate signed by
the President, a Vice President or other officer designated by the Board of Directors,
countersigned by the Treasurer or the Secretary or an Assistant Treasurer or an Assistant
Secretary. Such signature of the President, Vice President, or other officer, such countersignature
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of the Treasurer or Secretary or Assistant Treasurer or Assistant Secretary, and such seal, or
any of them, may be executed in facsimile, engraved or printed. In case any officer who has signed
or whose facsimile signature has been placed upon any share certificate shall have ceased to be
such officer because of death, resignation or otherwise before the certificate is issued, it may be
issued by the Corporation with the same effect as if the officer had not ceased to be such at the
date of its issue. Said certificates of stock shall be in such form as the Board of Directors may
from time to time prescribe.
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ARTICLE VII
INDEMNIFICATION
Section 1. General. The Corporation shall indemnify, and advance Expenses (as this and
as other capitalized words not otherwise defined herein are defined in Section 14 of this Article)
to, Indemnitee to the fullest extent permitted by applicable law in effect on the date of
effectiveness of these Bylaws, and to such greater extent as applicable law may thereafter permit.
The rights of Indemnitee provided under the preceding sentence shall include, but not be limited
to, the right to be indemnified to the fullest extent permitted by § 145(b) of the Delaware General
Corporation Law in Proceedings by or in the right of the Corporation and to the fullest extent
permitted by § 145(a) of the Delaware General Corporation Law in all other Proceedings.
Section 2. Expenses Related to Proceedings. If Indemnitee is, by reason of his
Corporate Status, a witness in or a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to any Matter in such Proceeding, the Corporation
shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his
behalf relating to each Matter. The termination of any Matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such Matter.
Section 3. Advancement of Expenses. Indemnitee shall be advanced Expenses within ten
(10) days after requesting them to the fullest extent permitted by § 145(e) of the Delaware General
Corporation Law.
Section 4. Request for Indemnification. To obtain indemnification, Indemnitee shall
submit to the Corporation a written request with such information as is reasonably available to
Indemnitee. The Secretary of the Corporation shall promptly advise the Board of Directors of such
request.
Section 5. Determination of Entitlement; No Change of Control. If there has been no
Change of Control at the time the request for indemnification is sent, Indemnitees entitlement to
indemnification shall be determined in accordance with § 145(d) of the Delaware General Corporation
Law. If entitlement to indemnification is to be determined by Independent Counsel, the Corporation
shall furnish notice to Indemnitee within ten (10) days after receipt of the request for
indemnification, specifying the identity and address of Independent Counsel. The Indemnitee may,
within fourteen (14) days after receipt of such written notice of selection, deliver to the
Corporation a written objection to such selection. Such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the requirements of Independent
Counsel and the objection shall set forth with particularity the factual basis of such assertion.
If there is an objection to the selection of Independent Counsel, either the Corporation or
Indemnitee may petition the Court of Chancery of the State of Delaware or any other court of
competent jurisdiction for a determination that the objection is without a reasonable basis and/or
for the appointment of Independent Counsel selected by the Court.
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Section 6. Determination of Entitlement; Change of Control. If there has been a Change
of Control at the time the request for indemnification is sent, Indemnitees entitlement to
indemnification shall be determined in a written opinion by Independent Counsel selected by
Indemnitee. Indemnitee shall give the Corporation written notice advising of the identity and
address of the Independent Counsel so selected. The Corporation may, within seven (7) days after
receipt of such written notice of selection, deliver to the Indemnitee a written objection to such
selection. Indemnitee may, within five (5) days after the receipt of such objection from the
Corporation, submit the name of another Independent Counsel and the Corporation may, within seven
(7) days after receipt of such written notice of selection, deliver to the Indemnitee a written
objection to such selection.
Any objection is subject to the limitations in Section 5 of this Article. Indemnitee may
petition the Court of Chancery of the State of Delaware or any other Court of competent
jurisdiction for a determination that the Corporations objection to the first and/or second
selection of Independent Counsel is without a reasonable basis and/or for the appointment as
Independent Counsel of a person selected by the Court.
Section 7. Procedures of Independent Counsel. If a Change of Control shall have
occurred before the request for indemnification is sent by Indemnitee, Indemnitee shall be presumed
(except as otherwise expressly provided in this Article) to be entitled to indemnification upon
submission of a request for indemnification in accordance with Section 4 of this Article, and
thereafter the Corporation shall have the burden of proof to overcome the presumption in reaching a
determination contrary to the presumption. The presumption shall be used by Independent Counsel as
a basis for a determination of entitlement to indemnification unless the Corporation provides
information sufficient to overcome such presumption by clear and convincing evidence or the
investigation, review and analysis of Independent Counsel convinces him by clear and convincing
evidence that the presumption should not apply.
Except in the event that the determination of entitlement to indemnification is to be made by
Independent Counsel, if the person or persons empowered under Section 5 or 6 of this Article to
determine entitlement to indemnification shall not have made and furnished to Indemnitee in writing
a determination within sixty (60) days after receipt by the Corporation of the request therefor,
the requisite determination of entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be entitled to such indemnification unless Indemnitee knowingly misrepresented a
material fact in connection with the request for indemnification or such indemnification is
prohibited by law. The termination of any proceeding or of any matter therein by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in this Article) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the Corporation, or
with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was unlawful.
Section 8. Independent Counsel Expenses. The Corporation shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting pursuant to this Article and in
any proceeding to which it is a party or witness in respect of its investigation and written report
and shall pay all reasonable fees and expenses incident to the procedures in which such
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Independent Counsel was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to his selection until a Court has determined that such objection is
without a reasonable basis.
Section 9. Adjudication. In the event that (i) a determination is made pursuant to
Section 5 or 6 that Indemnitee is not entitled to indemnification under this Article, (ii)
advancement of Expenses is not timely made pursuant to Section 3 of this Article, (iii) Independent
Counsel has not made and delivered a written opinion determining the request for indemnification
(a) within ninety (90) days after being appointed by the Court, or (b) within ninety (90) days
after objections to his selection have been overruled by the Court, or (c) within ninety (90) days
after the time for the Corporation or Indemnitee to object to his selection, or (iv) payment of
indemnification is not made within five (5) days after a determination of entitlement to
indemnification has been made or deemed to have been made pursuant to Section 5, 6 or 7 of this
Article, Indemnitee shall be entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. In the event that a determination shall have been made
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section shall be conducted in all respects as a de novo trial on the
merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change
of Control shall have occurred, in any judicial proceeding commenced pursuant to this Section, the
Corporation shall have the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be. If a determination shall have been made or deemed to
have been made that Indemnitee is entitled to indemnification, the Corporation shall be bound by
such determination in any judicial proceeding commenced pursuant to this Section 9, or otherwise,
unless Indemnitee knowingly misrepresented a material fact in connection with the request for
indemnification, or such indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 9 that the procedures and presumptions of this Article are not valid,
binding and enforceable and shall stipulate in any such court that the Corporation is bound by all
provisions of this Article. In the event that Indemnitee, pursuant to this Section 9, seeks a
judicial adjudication to enforce his rights under, or to recover damages for breach of, this
Article, Indemnitee shall be entitled to recover from the Corporation, and shall be indemnified by
the Corporation against, any and all Expenses actually and reasonably incurred by him in such
judicial adjudication, but only if he prevails therein. If it shall be determined in such judicial
adjudication that Indemnitee is entitled to receive part but not all of the indemnification or
advancement of Expenses sought, the Expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be appropriately prorated.
Section 10. Nonexclusivity of Rights. The rights of indemnification and advancement of
Expenses as provided by this Article shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the
Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Article or any provision thereof shall be effective as to
any Indemnitee for acts, events and circumstances that occurred, in whole or in part, before such
amendment, alteration or repeal. The provisions of this Article shall continue as
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to an Indemnitee whose Corporate Status has ceased and shall inure to the benefit of his
heirs, executors and administrators.
Section 11. Insurance and Subrogation. To the extent the Corporation maintains an
insurance policy or policies providing liability insurance for directors or officers of the
Corporation or of any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person serves at the request of the Corporation, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the maximum extent of
coverage available for any such director or officer under such policy or policies.
In the event of any payment hereunder, the Corporation shall be subrogated to the extent of
such payment to all the rights of recovery of Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such documents as are
necessary to enable the Corporation to bring suit to enforce such rights.
The Corporation shall not be liable under this Article to make any payment of amounts
otherwise indemnifiable hereunder if, and to the extent that, Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
Section 12. Severability. If any provision or provisions of this Article shall be held
to be invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby;
and, to the fullest extent possible, the provisions of this Article shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 13. Certain Persons Not Entitled to Indemnification. Notwithstanding any other
provision of this Article, no person shall be entitled to indemnification or advancement of
Expenses under this Article with respect to any Proceeding, or any Matter therein, brought or made
by such person against the Corporation.
Section 14. Definitions. For purposes of this Article:
Change of Control means a change in control of the Corporation after the date of
adoption of these Bylaws in any one of the following circumstances: (i) there shall have occurred
an event required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the Act ), whether or not the Corporation is then subject to such
reporting requirement; (ii) any person (as such term is used in Section 13(d) and 14(d) of the
Act) shall have become the beneficial owner (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Corporation representing 40% or more of the combined voting power
of the Corporations then outstanding voting securities without prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (iii) the Corporation is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy contest, as a consequence of which members of
the Board of Directors in office immediately prior to such transaction or event constitute less
than a majority of the Board of Directors thereafter; (iv) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
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Directors (including for this purpose any new director whose election or nomination for
election by the Corporations stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of Directors.
Corporate Status describes the status of a person who is or was a director or
officer of the Corporation or of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person is or was serving at the request of the
Corporation.
Disinterested Director means a director of the Corporation who is not and was not a
party to the Proceeding in respect of which indemnification is sought by Indemnitee.
Expenses shall include all reasonable attorneys fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a Proceeding.
Indemnitee includes any person who is, or is threatened to be made, a witness in or
a party to any Proceeding as described in Section 1 or 2 of this Article by reason of his Corporate
Status.
Independent Counsel means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither presently is, nor in the five years previous to his
selection or appointment has been, retained to represent: (i) the Corporation or Indemnitee in any
matter material to either such party, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.
Matter is a claim, a material issue, or a substantial request for relief.
Proceeding includes any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, except one initiated by an Indemnitee pursuant to Section 9 of
this Article to enforce his rights under this Article.
Section 15. Notices. Any communication required or permitted to the Corporation shall
be addressed to the Secretary of the Corporation and any such communication to Indemnitee shall be
addressed to his home address unless he specifies otherwise and shall be personally delivered or
delivered by overnight mail delivery.
Section 16. Contractual Rights. The right to be indemnified or to the advancement or
reimbursement of Expenses (i) is a contract right based upon good and valuable consideration,
pursuant to which Indemnitee may sue as if these provisions were set forth in a separate written
contract between him or her and the Corporation, (ii) is and is intended to be retroactive and
shall be available as to events occurring prior to the adoption of these provisions, and (iii)
shall continue after any rescission or restrictive modification of such provisions as to events
occurring prior thereto.
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