EXHIBIT 3.2
RENT-A-CENTER, INC.
AMENDED AND RESTATED BYLAWS
DATED DECEMBER 31, 2002
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 days nor more than sixty 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.
At the annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the annual meeting. To be
properly brought before the annual meeting of stockholders, business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (iii) otherwise
properly brought before the meeting by a stockholder of the Corporation who is a
stockholder of record at the time of giving notice provided for in this Section
1 of Article I, who shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section 1 of Article I. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder, in addition to any other applicable requirements, 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 90 days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders of the Corporation. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting: (a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business, (c) the class and number of shares of
voting stock of the Corporation that are beneficially owned by the stockholder;
(d) a representation that the stockholder intends to appear in person or by
proxy at the meeting to bring the proposed business before the annual meeting,
and (e) a description of any material interest of the stockholder in such
business. Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 1 of Article I. The presiding officer of an annual
meeting shall, if the facts warrant, determine and declare to the meeting that
the business was not properly brought before the meeting in accordance with the
provisions of this Section 1 of
Article I, and if he should so determine, he 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 1 of Article
I, 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 1 of Article I.
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 the
majority of an entire committee of such Board. Upon written request of the
persons who have duly called a special meeting, it shall be the duty of the
Secretary of the Corporation to fix the date of the meeting to be held not less
than ten nor more than sixty days after the receipt of the request and to give
due notice thereof. If the Secretary shall neglect or refuse to fix the date of
the meeting and give notice thereof, the persons calling the meeting may do so.
SECTION 3. 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 4. 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 nor more than sixty days, prior to the day named for
the meeting addressed to each stockholder at his address appearing on the books
of the Corporation or supplied by him to the Corporation for the purpose of
notice.
SECTION 5. Record Date. The Board of Directors may fix a date, not less
than ten or more than sixty 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.
SECTION 6. 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 7. 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. Directors shall be
elected by a plurality of the votes cast in the 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 of the Corporation, as amended (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
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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 National Market 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 Securities Exchange Act of 1934 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 approval 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 8. 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 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.
SECTION 9. Nominations for Election as a Director. Only persons who are
nominated in accordance with the procedures set forth in these Bylaws shall be
eligible for election as, and to serve as, directors. Nominations of persons for
election to the Board of Directors of the Corporation may be made at a meeting
of stockholders (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 notice provided for in this Section 9 of Article I, who shall be
entitled to vote for the election of directors at the meeting and who complies
with the notice procedures set forth in this Section 9 of Article I. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered or
mailed and received at the principal executive offices of the Corporation (i)
with respect to an election to be held at the annual meeting of the stockholders
of the Corporation, not less than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders of the Corporation, and
(ii) with respect to an election to be held at a special meeting of stockholders
of the Corporation for the election of directors, not later than the close of
business on the tenth day following the day on which notice of the date of the
special meeting was mailed to stockholders of the Corporation as provided in
Section 4 of Article I or public disclosure of the date of the special meeting
was made, whichever first occurs. Such stockholder's notice to the Secretary
shall set forth (x) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serve as a
director if elected), and (y) as to the stockholder giving the notice (i) the
name and address, as they appear on the Corporation's books, of such stockholder
and (ii) the class and number of shares of voting stock of the Corporation which
are beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. Other than directors chosen
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pursuant to the provisions of Section 2 of Article II, no person shall be
eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 9 of Article I. The
presiding officer of the meeting of stockholders shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section 9 of
Article I, 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 9 of Article I.
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; provided, however, that (i) the
number of directors constituting the entire Board of Directors shall be
consistent with any stockholders agreement that the Corporation is a party to,
and (ii) in no event, shall the Board of Directors cause the number of directors
to be greater than seven (7) without the approval of holders of at least a
majority of the outstanding shares of the Corporation's Series A Preferred
Stock, voting separately as a class. 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 director's
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.
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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 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.
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 7A. Voting. Except as otherwise provided herein or in the
Certificate of Incorporation of the Corporation, all decisions of the
Corporation's 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 8. 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 9. 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 Delaware 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
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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 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,
Vice President-Finance, Regional Vice Presidents, Secretary, Treasurer, Chief
Operating Officer, Chief Financial Officer, 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, signed by the President or such 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; and such
signature of the President, Vice President, or other officer, such
countersignature 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
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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.
ARTICLE VII
INDEMNIFICATION
SECTION 1. General. The Corporation shall indemnify, and advance
Expenses (as this and a 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 Section 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 Section
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 days after requesting them to the fullest extent permitted
by Section 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, Indemnitee's entitlement to indemnification shall be determined in
accordance with Section 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 days after receipt of
the request for indemnification, specifying the identity and address of
Independent Counsel. The Indemnitee may, within fourteen 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
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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.
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, Indemnitee's 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 days after
receipt of such written notice of selection, deliver to the Indemnitee a written
objection to such selection. Indemnitee may, within five days after the receipt
of such objection from the Corporation, submit the name of another Independent
Counsel and the Corporation may, within seven 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
Corporation's 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 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
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report and shall pay all reasonable fees and expenses incident to the procedures
in which such 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 90 days
after being appointed by the Court, or (b) within 90 days after objections to
his selection have been overruled by the Court, or (c) within 90 days after the
time for the Corporation or Indemnitee to object to his selection, or (iv)
payment of indemnification is not made within 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 to an Indemnitee whose Corporate
Status has ceased and shall inure to the benefit of his heirs, executors and
administrators.
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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
Corporation's 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 Directors (including for this purpose any new director whose
election or nomination for election by the Corporation's 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.
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"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary 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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