EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
PORTFOLIO RECOVERY ASSOCIATES, INC.
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the Corporation
within the State of Delaware shall be located at the principal place of business
in said State of such corporation or individual acting as the Corporation's
registered agent in Delaware.
Section 1.2. Other Offices. The Corporation may also have offices and
places of business 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 II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of stockholders shall be
held at the principal office of the Corporation, or at such other 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 2.2. Annual Meetings. The annual meeting of stockholders for the
election of directors shall be held at such time on such day, other than a legal
holiday, as the Board of Directors in each such year determines. At the annual
meeting, the stockholders entitled to vote for the election of directors shall
elect, by a plurality vote, a Board of Directors and transact such other
business as may properly come before the meeting.
Section 2.3. Special Meetings. Special meetings of stockholders, for any
purpose or purposes, may be called as provided in the Amended and Restated
Certificate of Incorporation. Any such request shall state the purpose or
purposes of the proposed meeting. At any special meeting of stockholders, only
such business may be transacted as is related to the purpose or purposes set
forth in the notice of such meeting.
Section 2.4. Notice of Meetings. Written notice of every meeting of
stockholders, stating the place, date and hour thereof and, in the case of a
special meeting of stockholders, the purpose or purposes thereof and the person
or persons by whom or at whose direction such meeting has been called and such
notice is being issued, shall be given not less than 10 nor more than 60 days
before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, the Secretary, or the persons calling
the meeting, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his, her
or its address as it appears on the stock transfer books of the Corporation.
Nothing herein contained shall preclude the stockholders from waiving notice as
provided in Section 4.1 hereof.
Section 2.5. Quorum. The holders of a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote, represented in
person or by proxy, shall be necessary to and shall constitute a quorum for the
transaction of business at any meeting of stockholders. If, however, such quorum
shall not be present or represented at any meeting of stockholders, 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 any such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. Notwithstanding the foregoing, if after any
such adjournment the Board of Directors shall fix a new record date for the
adjourned meeting, or if the adjournment is for more than 30 days, a notice of
such adjourned meeting shall be given as provided in Section 2.4 of these
By-Laws, but such notice may be waived as provided in Section 4.1 hereof.
Section 2.6. Voting. The voting rights of stockholders shall be as
provided in the Amended and Restated Certificate of Incorporation.
Section 2.7. Proxies. Every stockholder entitled to vote at a meeting or
by consent without a meeting may authorize another person or persons to act for
such stockholder by proxy. Each proxy shall be in writing executed by the
stockholder giving the proxy or by his duly authorized attorney. No proxy shall
be valid after the expiration of three (3) years from its date, unless a longer
period is provided for in the proxy. Unless and until voted, every proxy shall
be revocable at the pleasure of the person who executed it, or his legal
representatives or assigns except in those cases where an irrevocable proxy
permitted by statute has been given.
Section 2.8. Stock Records. The Secretary or agent having charge of the
stock transfer books shall prepare and make, at least 10 days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting or any adjournment thereof, arranged in alphabetical order and
showing the address of and the number and class and series, if any, of shares
held by each stockholder. Such list, for a period of 10 days prior to such
meeting, shall be kept at the principal place of business of the Corporation or
at the office of the transfer agent or registrar of the Corporation and such
other places as required by statute and shall be subject to inspection by any
stockholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any stockholder at any time during the meeting.
Section 2.9. Conduct of Meeting. The Chairman of the Board shall preside
at all meetings of the stockholders. In the absence of the Chairman of the
Board, the Chief Executive Officer shall preside at all such meetings. In the
absence of the Chairman of the Board or the Chief Executive Officer, the
President shall preside at all such meetings. If none of the Chairman of the
Board, the Chief Executive Officer or the President is present, then any other
director chosen by the directors in attendance shall preside. The Secretary of
the Corporation, or, in his or her absence, an Assistant Secretary, if any,
shall act as secretary of every meeting, but if
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neither the Secretary nor an Assistant Secretary is present, the person
presiding at the meeting shall appoint a secretary of the meeting.
Section 2.10. Inspectors and Judges. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If an inspector or inspectors or judge or judges are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors or judges. In case any person who may be appointed as an inspector or
judge fails to appear or act, the vacancy may be filled by appointment made by
the person presiding at the meeting. Each inspector or judge, if any, before
entering upon the discharge of his duties, shall take and sign an oath to
faithfully execute the duties of inspector or judge at such meeting with strict
impartiality and according to the best of his ability. The inspectors or judges,
if any, shall determine the number of shares of stock outstanding and the voting
power of each class and series, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the person presiding at the meeting, the inspector or inspectors or judge or
judges, if any, shall make a report in writing on any challenge, question or
matter determined by him or them and execute a certificate of any fact found by
him or them.
Section 2.11. Stockholder Proposals. At any annual meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (a) by or at the direction of the Board of Directors or (b)
by any stockholder of the Corporation who is a stockholder of record at the time
of giving of the notice provided for in this Section 2.11, who shall be entitled
to vote at such meeting and who complies with the procedures set forth below.
For business to be properly brought before an annual meeting of stockholders,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the anniversary
date of the immediately preceding annual meeting; provided, however, that in the
event that the annual meeting with respect to which such notice is to be
tendered is not held within 30 days before or after such anniversary date,
notice by the stockholder to be timely must be received no later than the close
of business on the 10th day following the day on which notice of the date of the
meeting or public disclosure thereof was given or made. Such stockholder's
notice 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, (c) the class and the number of shares of
stock of the Corporation which are beneficially owned by the stockholder and (d)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with such
business and any material interest of the stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business shall be
conducted at a stockholder meeting except in accordance with the procedures set
forth in this Section 2.11. If the Board of Directors of the meeting shall
determine, based on
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the facts, that business was not properly brought before the meeting in
accordance with the procedures set forth in this Section 2.11, the Chairman of
the Board or the person presiding at such meeting shall so declare to the
meeting and any such business not properly brought before such meeting shall not
be transacted. Notwithstanding the foregoing provisions of this Section 2.11, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section 2.11. Notwithstanding the
foregoing provisions of this Section 2.11, stockholder nominations of persons
for election to the Board of Directors shall be governed by the Amended and
Restated Certificate of Incorporation.
ARTICLE III
DIRECTORS
Section 3.1. Number. The number of directors of the Corporation which
shall constitute the entire Board of Directors shall initially be fixed by the
incorporator and thereafter from time to time by a vote of a majority of the
entire Board of Directors and shall be not less than 2 nor more than 11. The
number of directors of the Corporation shall initially be 2. A majority of the
directors shall be independent directors, as determined under current Nasdaq
National Market ("Nasdaq") rules.
Section 3.2. Nomination, Classification, Election, Term, Removal,
Vacancies, Resignation and Newly Created Directorships. The nomination,
classification, election, term, removal and newly created directorships shall be
governed by the Amended and Restated Certificate of Incorporation. Any director
may resign at any time upon notice of resignation to the Corporation.
Section 3.3. Powers and Duties. Subject to the applicable provisions of
law, these Amended and Restated By-Laws or the Amended and Restated Certificate
of Incorporation, but in furtherance and not in limitation of any rights therein
conferred, the Board of Directors shall have the control and management of the
business and affairs of the Corporation and shall exercise all such powers of
the Corporation and do all such lawful acts and things as may be exercised by
the Corporation.
Section 3.4. Place of Meetings. All meetings of the Board of Directors
may be held either within or without the State of Delaware.
Section 3.5. Annual Meetings. An annual meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting to the newly elected directors shall
be necessary in order to legally constitute the meeting, provided a quorum shall
be present, or the newly elected directors may meet at such time and place as
shall be fixed by the written consent of all of such directors.
Section 3.6. Regular Meetings. Regular meetings of the Board of
Directors may be held upon such notice or without notice, and at such time and
at such place as shall from time to time
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be determined by the Board of Directors. Such meetings shall include executive
sessions of the independent directors of the Corporation.
Section 3.7. Special Meetings. Special meetings of the Board of
Directors may be called as provided in the Amended and Restated Certificate of
Incorporation of the Company by a majority of the Board of Directors. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 3.8. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary or an Assistant Secretary and shall
state the place, date and time of the meeting. Notice of each such meeting shall
be given orally or shall be mailed to each director at his residence or usual
place of business. If notice of less than 3 days is given, it shall be oral,
whether by telephone or in person, or sent by special delivery mail or
telegraph. If mailed, the notice shall be given when deposited in the United
States mail, postage prepaid. Notice of any adjourned meeting, including the
place, date and time of the new meeting, shall be given to all directors not
present at the time of the adjournment, as well as to the other directors unless
the place, date and time of the new meeting is announced at the adjourned
meeting. Nothing herein contained shall preclude the directors from waiving
notice as provided in Section 4.1 hereof.
Section 3.9. Quorum and Voting. At all meetings of the Board of
Directors, a majority of the entire Board of Directors shall be necessary to,
and shall constitute a quorum for, the transaction of business at any meeting of
directors, unless otherwise provided by any applicable provision of law, by
these Amended and Restated By-Laws, or by the Amended and Restated Certificate
of Incorporation. The act of a majority of the directors present at the time of
the vote, if a quorum is present at such time, shall be the act of the Board of
Directors, unless otherwise provided by an applicable provision of law, by these
Amended and Restated By-Laws or by the Amended and Restated 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, until a quorum shall be present.
Section 3.10. Compensation. The Board of Directors, by the affirmative
vote of a majority of the directors then in office, and irrespective of any
personal interest of any of its members, shall have authority to establish
reasonable compensation of all directors for services to the Corporation as
directors, officers or otherwise, provided that, no independent director (or a
non-employee family member of such director) shall receive any payments
(including political contributions) which would disqualify such director from
being an independent director under then current Securities and Exchange
Commission and Nasdaq regulations ($0 in the case of audit committee members),
other than for Board or committee service.
Section 3.11. Books and Records. The directors may keep the books of the
Corporation, except such as are required by law to be kept within the state,
outside of the State of Delaware, at such place or places as they may from time
to time determine.
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Section 3.12. Action without a Meeting. Any action required or permitted
to be taken by the Board of Directors, or by a committee of the Board of
Directors, may be taken without a meeting if all members of the Board of
Directors or the committee, as the case may be, consent in writing to the
adoption of a resolution authorizing the action. Any such resolution and the
written consents thereto by the members of the Board of Directors or committee
shall be filed with the minutes of the proceedings of the Board of Directors or
committee.
Section 3.13. Telephone Participation. Any one or more members of the
Board of Directors, or any committee of the Board of Directors, may participate
in a meeting of the Board of Directors or committee by means of a conference
telephone call or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
Section 3.14. Committees of the Board. The Board of Directors shall
designate an Audit Committee, a Compensation Committee and a Nominating
Committee and may designate one or more other committees, each consisting of one
or more directors. The Board of Directors may designate one or more directors as
alternate members of any such committee. Such alternate members may replace any
absent member or members at any meeting of such committee. Each committee
(including the members thereof) shall serve at the pleasure of the Board of
Directors and shall keep minutes of its meetings and report the same to the
Board of Directors. Except as otherwise provided by law, each such committee, to
the extent provided in the resolution establishing it, shall have and may
exercise all the authority of the Board of Directors with respect to all
matters.
ARTICLE IV
WAIVER
Section 4.1. Waiver. Whenever a notice is required to be given by any
provision of law, by these Amended and Restated By-Laws, or by the Amended and
Restated Certificate of Incorporation, a waiver thereof in writing, whether
before or after the time stated therein, shall be deemed equivalent to such
notice. In addition, any stockholder attending a meeting of stockholders in
person or by proxy without protesting prior to the conclusion of the meeting the
lack of notice thereof to him or her, and any director attending a meeting of
the Board of Directors without protesting prior to the meeting or at its
commencement such lack of notice, shall be conclusively deemed to have waived
notice of such meeting.
ARTICLE V
OFFICERS
Section 5.1. Executive Officers. The officers of the Corporation shall
be a President, a Chief Executive Officer, a Secretary and a Treasurer. Any
person may hold two or more of such offices. The officers of the Corporation
shall be elected annually (and from time to time by the Board of Directors, as
vacancies occur), at the annual meeting of the Board of Directors following the
meeting of stockholders at which the Board of Directors was elected.
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Section 5.2. Other Officers. The Board of Directors may appoint such
other officers and agents, including Senior Vice Presidents, Vice Presidents,
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, as it
shall at any time or from time to time deem necessary or advisable.
Section 5.3. Authorities and Duties. All officers, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of business and affairs of the Corporation as may be provided in
these By-Laws, or, to the extent not so provided, as may be prescribed by the
Board of Directors.
Section 5.4. Tenure and Removal. The officers of the Corporation shall
be elected or appointed to hold office until their respective successors are
elected or appointed. All officers shall hold office at the pleasure of the
Board of Directors, and any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors for cause or
without cause at any regular or special meeting.
Section 5.5. Vacancies. Any vacancy occurring in any office of the
Corporation, whether because of death, resignation or removal, with or without
cause, or any other reason, shall be filled by the Board of Directors.
Section 5.6. Compensation. The salaries and other compensation of all
officers and agents of the Corporation shall be fixed by or in the manner
prescribed by the Board of Directors.
Section 5.7. Chief Executive Officer. The Chief Executive Officer shall
have general supervision of the business and affairs of the Corporation and
shall have such powers and duties as the Board of Directors may from time to
time prescribe. In the absence of the Chairman of the Board, the Chief Executive
Officer shall preside at all meetings of the stockholders and directors.
Section 5.8. President. The President shall have general charge of the
business and affairs of the Corporation subject to the control of the Board of
Directors and the Chief Executive Officer and in the absence of the Chairman of
the Board and the Chief Executive Officer shall preside at all meetings of the
stockholders and directors. The President shall perform such other duties as are
properly required of him or her by the Board of Directors.
Section 5.9. Vice President. Each Vice President (including Senior Vice
Presidents and Assistant Vice Presidents), if any, shall perform such duties as
may from time to time be assigned to him or her by the President, the Chief
Executive Officer or the Board of Directors.
Section 5.10. Secretary. The Secretary shall attend all meetings of the
stockholders and all meetings of the Board of Directors and shall record all
proceedings taken at such meetings in a book to be kept for that purpose; the
Secretary shall see that all notices of meetings of stockholders and meetings of
the Board of Directors are duly given in accordance with the provisions of these
By-Laws or as required by law; the Secretary shall be the custodian of the
records and of the corporate seal or seals of the Corporation; the Secretary
shall have authority to affix the corporate seal or seals to all documents, the
execution of which, on behalf of the
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Corporation, under its seal, is duly authorized, and when so affixed it may be
attested by the Secretary's signature; and in general, the Secretary shall
perform all duties incident to the office of the Secretary of a corporation, and
such other duties as the Board of Directors may from time to time prescribe.
Section 5.11. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation and shall deposit, or cause to be deposited, in the name and to the
credit of the Corporation, all moneys and valuable effects in such banks, trust
companies, or other depositories as shall from time to time be selected by the
Board of Directors. The Treasurer shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation; the Treasurer
shall render to the President, the Chief Executive Officer and each member of
the Board of Directors, whenever requested, an account of all of his
transactions as Treasurer and of the financial condition of the Corporation; and
in general, the Treasurer shall perform all of the duties incident to the office
of the Treasurer of a corporation, and such other duties as the Board of
Directors may from time to time prescribe.
Section 5.12. Other Officers. The Board of Directors may also elect or
may delegate to the President or the Chief Executive Officer the power to
appoint such other officers as it may at any time or from time to time deem
advisable, and any officers so elected or appointed shall have such authority
and perform such duties as the Board of Directors, the President or the Chief
Executive Officer, if he or she shall have appointed them, may from time to time
prescribe.
ARTICLE VI
PROVISIONS RELATING TO STOCK CERTIFICATES AND STOCKHOLDERS
Section 6.1. Form and Signature. The shares of the Corporation shall be
represented by a certificate signed by the Chairman of the Board, the President,
the Chief Executive Officer or any Vice President and by the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer and shall bear the
seal of the Corporation or a facsimile thereof. Each certificate representing
shares shall state upon its face (a) that the Corporation is formed under the
laws of the State of Delaware, (b) the name of the person or persons to whom it
is issued, (c) the number of shares which such certificate represents and (d)
the par value, if any, of each share represented by such certificate.
Section 6.2. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares of stock to receive dividends or other distributions, and to
vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of stock, and shall not be bound to
recognize any equitable or legal claim to or interest in such shares on the part
of any other person.
Section 6.3. Transfer of Stock. Upon surrender to the Corporation or the
appropriate transfer agent, if any, of the Corporation, of a certificate
representing shares of stock duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer,
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and, in the event that the certificate refers to any agreement restricting
transfer of the shares which it represents, proper evidence of compliance with
such agreement, a new certificate shall be issued to the person entitled
thereto, and the old certificate cancelled and the transaction recorded upon the
books of the Corporation.
Section 6.4. Lost Certificates, etc. The Corporation may issue a new
certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board of
Directors may require the owner of such lost, mutilated, stolen or destroyed
certificate, or such owner's legal representatives, to make an affidavit of the
fact 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 on account
of the alleged loss, mutilation, theft or destruction of any such certificate or
the issuance of any such new certificate.
Section 6.5. Record Date. For the purpose of determining the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment thereof, or to express written consent to any corporate
action without a meeting, or for the purpose of determining stockholders
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. Such date shall not
be more than sixty (60) nor less than ten (10) days before the date of any such
meeting, nor more than sixty (60) days prior to any other action.
Section 6.6. Regulations. Except as otherwise provided by law, the Board
of Directors may make such additional rules and regulations, not inconsistent
with these By-Laws, as it may deem expedient, concerning the issue, transfer and
registration of certificates for the securities of the Corporation. The Board of
Directors may appoint, or authorize any officer or officers to appoint, one or
more transfer agents and one or more registrars and may require all certificates
for shares of capital stock to bear the signature or signatures of any of them.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends and Distributions. Dividends and other
distributions upon or with respect to outstanding shares of stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, bonds, property, or in stock of the
Corporation. The Board of Directors shall have full power and discretion,
subject to the provisions of the Amended and Restated Certificate of
Incorporation or the terms of any other corporate document or instrument to
determine what, if any, dividends or distributions shall be declared and paid or
made.
Section 7.2. Checks, etc. All checks or demands for money and notes or
other instruments evidencing indebtedness or obligations of the Corporation
shall be signed by such officer or officers or other person or persons as may
from time to time be designated by the Board of Directors.
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Section 7.3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 7.5. General and Special Bank Accounts. The Board of Directors
may authorize from time to time the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositories as the
Board of Directors may designate or as may be designated by any officer or
officers of the Corporation to whom such power of designation may be delegated
by the Board of Directors from time to time. The Board of Directors may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-Laws, as it may deem expedient.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS
Section 8.1. Indemnification by Corporation. The indemnification of
directors, officers and other persons shall be as provided in the Amended and
Restated Certificate of Incorporation.
ARTICLE IX
ADOPTION AND AMENDMENTS
Section 9.1. Power to Amend. The power to adopt, amend and repeal the
By-Laws shall be as provided in the Amended and Restated Certificate of
Incorporation.
I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of
the Bylaws of Portfolio Recovery Associates, Inc., a Delaware corporation, as in
effect on the date hereof.
Dated: October 29, 2002 /s/ Judith S. Scott
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Judith S. Scott, Secretary
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