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EXHIBIT 3.3
RENT-A-CENTER, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I.
MEETINGS OF STOCKHOLDERS
SECTION 1. Annual Meetings of Stockholders. The annual meeting of
the stockholders of 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
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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. ff 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
stock-holders 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
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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 Restated
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 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 Company 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
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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, 0
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 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. The
Board of Directors of the Corporation shall consist of seven 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
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.
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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 Director 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 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
Amended and Restated 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
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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 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, 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 confer-red 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. The Chairman of the Board shall also be the Chief Executive
Officer of the Corporation and shall have general supervision over the
business, affairs, and property of the Corporation.
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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 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.
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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 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
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(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 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
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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.
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 Company shall be subrogated
to the extent of such payment to all the rights of recovery of Indemnitee, who
shall execute all papers required and
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take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
The Company 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.
"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 per son is or was serving i the request of the
Corporation.
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"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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