SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 1)
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
AARONS, INC.
(Exact name of Registrant as Specified in its Charter)
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Georgia
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58-0687630
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(State or other Jurisdiction of Incorporation)
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(IRS Employer
Identification No.)
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309 E. Paces Ferry Road, N.E.
Atlanta, Georgia
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30305-2377
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(Address of principal executive offices)
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(Zip code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class
to be so registered
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Name of Exchange on which
Each class is registered
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Common Stock, par value $0.50 per share
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New York Stock Exchange
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If this form relates to the registration of a class of securities pursuant to Section 12(b) of the
Exchange Act and is effective pursuant to General Instruction A.(c), check the following box.
þ
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to General Instruction A.(d), check the following box.
o
Securities Act registration statement file number to which this form relates:
N/A
(if
applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
None
TABLE OF CONTENTS
Item 1. Description of Registrants Securities to be Registered
The Class A Common Stock, par value $0.50 per share (the Class A Common Stock), of Aarons,
Inc., a Georgia corporation (the Company) was registered under Section 12(b) of the Securities
Exchange Act of 1934, as amended, pursuant to a Registration Statement on Form 8-A initially filed
by the Company on March 10, 1998.
At the special meeting of shareholders held on December 7, 2010, the shareholders of the
Company approved, among other things, a proposal to (i) amend and restate the Companys Amended and
Restated Articles of Incorporation to (a) effect a reclassification of each outstanding share of
Common Stock, par value $0.50 per share (the Nonvoting Common Stock) into one share of Class A
Common Stock (the Class A Common Stock) and to rename the Class A Common Stock as Common Stock
(the Common Stock), (b) to eliminate certain obsolete provisions relating to the Companys prior
dual-class common stock structure, and (c) to amend the number of authorized shares to be
225,000,000 total shares of Common Stock (the aggregate of the number of authorized shares of
Nonvoting Common Stock and Class A Common Stock prior to the approval of the Amended and Restated
Articles of Incorporation) and (ii) to amend the Bylaws of the Company.
This Form 8-A/A is filed for the purpose of updating and amending the description of the
combined class now titled Common Stock, including renaming the Class A Common Stock as Common
Stock.
The following description assumes that the Company will take all steps necessary to cause the
Companys Amended and Restated Articles of Incorporation to become effective. The following
descriptions of the terms of the Companys Amended and Restated Articles of Incorporation and the
Companys Bylaws, as amended, below reflect the terms of those documents as they will be following
the effectiveness of such documents.
General
The Companys authorized capital stock consists of 225,000,000 shares of Common Stock and
1,000,000 shares of Preferred Stock, par value $1.00 per share (Preferred Stock), of which
80,641,408 shares of Common Stock are expected to be outstanding upon the reclassification
(excluding shares to be issued upon exercise of outstanding options, or upon vesting of outstanding
unvested restricted stock units), and no shares of Preferred Stock are expected to be outstanding.
Common Stock
Voting
. The shares of the combined class now titled Common Stock have one vote per share on
all matters submitted to the Companys shareholders, including the election of directors. In order
for an action to be approved by the shareholders of the Company, the votes cast in favor of the
action are required to exceed the votes cast opposing the action (other than the election of
directors or other matters for which law, the Companys Bylaws, as amended, or the Companys
Amended and Restated Articles of Incorporation prescribe a different vote).
Dividends and Other Distributions
. The holders of Common Stock are entitled to receive
dividends and other distributions in cash, stock or property of the Company as and when declared by
the board of directors of the Company out of legally available funds.
Cumulative Voting; Preemptive Rights
. The holders of Common Stock have no cumulative voting
rights or preemptive rights enabling them to subscribe for or receive shares of any class of the
Companys stock or any other securities convertible into shares of any class of the Companys
stock.
Other Rights
. There are no conversion rights or redemption or sinking fund provisions for the
shares of Common Stock.
Preferred Stock
The Companys board of directors may, without approval of the Companys shareholders, from
time to time authorize the issuance of Preferred Stock in one or more series for such consideration
and, within certain limits, with such relative rights, powers, preferences and limitations as the
Companys board of directors may determine. Because the board of directors has the power to
establish the preferences, powers and rights of each series of Preferred Stock, it may give to the
holders of any such series preferences, powers and rights, voting or otherwise, senior to the
rights of holders of Common Stock.
Certain Effects of Authorized but Unissued Shares
The Company may issue additional shares of Common Stock or Preferred Stock without shareholder
approval, subject to applicable listing standards of the New York Stock Exchange, for a variety of
corporate purposes, including raising additional capital, corporate acquisitions and employee
benefit plans. Although the board of directors has no present intention of doing so, it could
issue Common Stock or Preferred Stock that could discourage an acquisition attempt or other
transaction that some, or a majority, of the Companys shareholders might believe to be in their
best interest or in which the shareholders might receive a premium for their stock over market
price.
Limitation on Directors Liability
The Companys Amended and Restated Articles of Incorporation eliminate, subject to exceptions
under Georgia law, the liability of the Companys directors to the Company or its shareholders for
breach of any duty as a director, whether as a fiduciary or otherwise. Georgia law provides that
no provision in the Companys Amended and Restated Articles of Incorporation or Bylaws, as amended,
shall eliminate or limit the liability of a director for:
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any appropriation, in violation of the directors duties, of any business
opportunity of the Company;
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acts or omissions which involve intentional misconduct or a knowing violation of
law;
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unlawful corporate distributions; or
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any transaction from which the director received an improper benefit.
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Liability for monetary damages remains unaffected by the Amended and Restated Articles of
Incorporation if liability is based on any of these grounds. Liability for monetary damages for
violation of federal securities laws also remains unaffected. This provision of the Amended and
Restated Articles of Incorporation limits the remedies available to a shareholder dissatisfied with
a board decision which is protected by this provision, and a shareholders only remedy in such a
circumstance may be to bring a suit to prevent the boards action. In many situations, this remedy
may not be effectivefor example, when shareholders are not aware of a transaction or an event
until it is too late to prevent it. In these cases, the shareholders and the Company could be
injured by a board decision and have no effective remedy.
Anti-Takeover Provisions in the Companys Articles of Incorporation and Bylaws
The Companys Amended and Restated Articles of Incorporation and Bylaws, as amended, include a
number of provisions that may have the effect of encouraging persons considering unsolicited tender
offers or other takeover proposals to negotiate with the Companys board of directors rather than
pursue non-negotiated takeover attempts. The following is a summary description of these
provisions, and the Company refers you to its Amended and Restated Articles of Incorporation and
Bylaws, as amended, for more information since their terms affect the rights of shareholders. The
anti-takeover provisions include:
Classified Board of Directors
. The Companys Bylaws, as amended, provide that the board of
directors will be divided into three classes of directors serving staggered three-year terms. Each
class, to the extent possible, will be equal in number, with the term of office of one class
expiring each year.
Removal of Directors
. The Companys Bylaws, as amended, provide that a director may be
removed only for cause and upon the affirmative vote of the holders of a majority of the Companys
outstanding shares.
Board Vacancies
. Any vacancy created by any reason prior to the expiration of the class in
which the vacancy occurs will be filled by a majority of the remaining directors, even if less than
a quorum. A director elected to fill a vacancy will be elected for the unexpired term of his
predecessor. If there are no directors in office, then vacancies will be filled through election
by the shareholders of the Company.
Advance Notice for Shareholder Proposals
. The Companys shareholders can submit shareholder
proposals and nominate candidates for the board of directors if the shareholders follow the advance
notice procedures described in the Companys Bylaws, as amended. The notice must include:
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the shareholder proposal, as it will be proposed, in full text and in writing;
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the purpose(s) for which the shareholder proposal is desired and the specific
meeting at which such proposal is to be considered;
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the name(s), address(es), and number of shares held of record by the shareholder(s)
making such proposal (or owned beneficially and represented by a nominee certificate
on file with the Company);
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the number of shares that have been solicited with regard to the shareholder
proposal and the number of shares the holders of which have agreed (in writing or
otherwise) to vote in any specific fashion on said shareholder proposal; and
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a written statement by such shareholder that they intend to continue ownership of
such voting shares through the date of the meeting at which said shareholder proposal
is proposed to be considered.
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If the proposal relates solely to the nomination and election of directors, the following
information must be provided with respect to each nominee:
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name, address and principal present occupation;
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to the knowledge of the shareholder who proposes to make such nomination, the total
number of shares that may be voted for such proposed nominee;
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the names and address of the shareholders who propose to make such nomination, and
the number of shares of the Company owned by each of such shareholders; and
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the following addition information with respect to each nominee: age, past
employment, education, beneficial ownership of shares in the Company, past and present
financial standing, criminal history, involvement in any past or pending litigation or
administrative proceedings, relationship to and agreements with the shareholder(s)
intending to make such nomination, past and present relationships or dealings with the
Company or any of its subsidiaries, affiliates, directors, officers or agents, plans
or ideas for managing the affairs of the Company, and any additional information
relating to such person that would be required to be disclosed, or otherwise required,
pursuant to Section 13 or 14 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (the Exchange Act), in connection
with an acquisition of shares by
such nominee or in connection with the solicitation of proxies by such nominee for
his or her election as a director, regardless of the applicability of such
provisions of the Exchange Act.
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In addition, if the shareholder intends to solicit proxies from the Companys shareholders,
such shareholder shall notify the Company of this intent in accordance with Securities and Exchange
Commission Rule 14a-4 and/or Rule 14a-8.
In order to properly submit a shareholder proposal, the shareholder must submit a notice to
the Companys corporate secretary at least 120 calendar days before the first anniversary of the
date that the Companys proxy statement was released to shareholders in connection with the
previous years annual meeting of shareholders. However, if no annual meeting of shareholders was
held in the previous year or if the date of the annual meeting of shareholders has been changed by
more than 30 calendar days from the date contemplated at the time of the previous years proxy
statement, the notice shall be received by the secretary at the Companys principal executive
offices not fewer than the later of (i) 150 calendar days prior to the date of the contemplated
annual meeting or (ii) the date which is 10 calendar days after the date of the first public
announcement or other notification to the shareholders of the date of the contemplated annual
meeting.
Shareholder proposals and director nominations that are late or that do not include all
required information may be rejected. This could prevent shareholders from bringing certain matters
before an annual or special meeting or making nominations for directors.
Transfer Agent
Computershare Trust Company is the registrar and transfer agent for the Companys Common
Stock.
New York Stock Exchange
The New York Stock Exchange has approved the listing of the Common Stock under the symbol
AAN, subject to the official notice of issuance.
Item 2 Exhibits
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Exhibit No.
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Description
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3.1
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Amended and Restated Articles of Incorporation of Aarons, Inc.
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3.2
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Bylaw Amendments of Aarons, Inc.
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4.1
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Specimen of Form of Stock Certificate Representing Shares of
Common Stock of the Company, par value $0.50 per share
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this registration statement to be signed on its behalf by the undersigned hereunto duly
authorized.
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AARONS, INC.
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By:
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/s/ Gilbert L. Danielson
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Gilbert L. Danielson
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Date: December 10, 2010
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Executive Vice President
and Chief Financial
Officer
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EXHIBIT INDEX
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Exhibit No.
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Description
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3.1
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Amended and Restated Articles of Incorporation of Aarons, Inc.
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3.2
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Amended and Restated Bylaws of Aarons, Inc., as amended
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4.1
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Specimen of Form of Stock Certificate Representing Shares of
Common Stock of the Company, par value $0.50 per share
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EXHIBIT 3.1
ARTICLES OF AMENDMENT AND RESTATEMENT
TO
ARTICLES OF INCORPORATION
OF
AARONS, INC.
1.
The name of the corporation is Aarons, Inc. (the Corporation). The Corporation is organized
under the laws of the State of Georgia.
2.
These Articles of Amendment and Restatement amend and restate the Articles of Incorporation of
the Corporation in their entirety. The full text of the Amended and Restated Articles of
Incorporation is set forth on
Exhibit A
attached hereto. The Amended and Restated Articles
of Incorporation of the Corporation contain amendments to Article V of the Articles of
Incorporation which required shareholder approval
3.
The Amended and Restated Articles of Incorporation of the Corporation were duly adopted by the
Board of Directors of the Corporation on September 10, 2010 and duly approved by the shareholders
of the Corporation on December 7, 2010 in accordance with the provisions of O.C.G.A. § 14-2-1003.
4.
These Articles of Amendment and Restatement shall take effect in the State of Georgia at 4:15
p.m. (eastern time) on December 10, 2010 (the Effective Time).
5.
Effective as of the Effective Time, (i) each share of the heretofore authorized, both issued
and unissued, Common Stock of the Corporation, par value $0.50 per share, shall be automatically
reclassified into one share of Class A Common Stock, par value $0.50 per share (the Class A Common
Stock) and (ii) the Class A Common Stock shall then be renamed as Common Stock.
IN WITNESS WHEREOF, AARONS, INC., has caused these Articles of Amendment and
Restatement to be executed and its corporate seal to be affixed hereto by its duly authorized
officer this 9th day of December, 2010.
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AARONS, INC.
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By:
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/s/ Gilbert L. Danielson
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Name:
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Gilbert L. Danielson
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Title:
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Executive Vice President and
Chief Financial Officer
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(CORPORATE SEAL)
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AARONS, INC.
I.
The name of the corporation is:
AARONS, INC.
II.
The Corporation is organized pursuant to the provisions of the Georgia Business Corporation
Code (the Code).
III.
The Corporation shall have perpetual duration.
IV.
The Corporation is organized for the following purposes:
To buy, sell, rent and lease office and residential furniture and accessories and other
personal property of all kinds; to manufacture, sell and deliver furniture of any kind whatsoever;
and generally to manufacture, produce, assemble, fabricate, import, purchase or otherwise acquire,
invest in, own, hold, use, maintain, service or repair, sell, rent, lease, pledge, mortgage,
exchange, export, distribute, assign and otherwise dispose of and to trade and deal in and with, at
wholesale or retail, goods, wares, merchandise, commodities, articles of commerce and property of
every kind and description; and to engage in, conduct and carry on a general manufacturing,
importing and exporting, merchandising, leasing, mercantile and trading business in any and all
branches thereof.
To do each and every thing necessary, suitable or proper for the accomplishment of any of the
purposes or the attainment of any one or more of the objects herein enumerated, or which shall at
any time appear conducive to or expedient for the protection or benefit of the Corporation.
IN FURTHERANCE OF AND NOT IN LIMITATION of the general powers conferred by the laws of the
State of Georgia and the objects and purposes herein set forth, it
is expressly provided that to such extent as a corporation organized under the Code may now or
hereafter lawfully do, the Corporation shall have the power to do, either as principal or agent and
either alone or in connection with other corporations, firms or individuals, all and anything
necessary, suitable, convenient or proper for, or in connection with, or incident to, the
accomplishment of any of the purposes or the attainment of any one or more of the objects herein
enumerated, or designed directly or indirectly to promote the interests of the Corporation or to
enhance the value of its properties; and in general to do any and all things and exercise any and
all powers, rights and privileges which a corporation may now or hereafter be authorized to do or
to exercise under the Code or under any act amendatory thereof, supplemental thereto or substituted
therefor.
The foregoing provisions of this Article IV shall be construed both as purposes and powers and
each as an independent purpose and power. The foregoing enumeration of specific purposes and
powers herein specified shall, except when otherwise provided in this Article IV, be in no wise
limited or restricted by referenced to, or inference from, the terms of any provision of this or
any other Article of these Amended and Restated Articles of Incorporation.
V.
The Corporation shall have authority to issue shares of capital stock consisting of Two
Hundred Twenty-Five Million (225,000,000) shares of Common Stock, par value $0.50 per share
(Common Stock), and One Million (1,000,000) shares of Preferred Stock, par value $1.00 per share
(Preferred Stock).
The Corporation may purchase its own shares of capital stock out of unreserved and
unrestricted earned surplus and capital surplus available therefor and as otherwise provided by
law. The Board of Directors may from time to time distribute to shareholders out of capital
surplus of the Corporation a portion of its assets, in cash or in property.
Section 1.
Terms of the Common Stock.
The powers, preferences and rights of the Common
Stock, and the qualifications, limitations or restrictions thereof, shall be as follows:
(a)
Voting.
At each annual or special meeting of stockholders, each holder of Common Stock
shall be entitled to one (1) vote in person or by proxy for each share of Common Stock standing in
such persons name on the stock transfer records of the Corporation in connection with the election
of directors and all other actions submitted to a vote of stockholders.
(b)
Dividends and Other Distributions.
The record holders of the Common Stock shall be
entitled to receive such dividends and other distributions in cash, stock or property of the
Corporation as may be declared thereon by the Board of Directors out of funds legally available
therefor.
A-2-
Section 2.
Terms of the Preferred Stock.
The following are the designations, powers,
preferences and rights of the preferred stock and the qualifications, limitations and restrictions
thereof:
(a) Except as otherwise provided by applicable law, or by the resolution or resolutions of the
Board of Directors providing for the issue of any series of a Preferred Stock, the holders of
shares of Preferred Stock, as such holders, (i) shall not have any right to vote, and are hereby
specifically excluded from the right to vote, in the election of directors or for any other
purpose, and (ii) shall not be entitled to notice of any meeting of shareholders.
(b) Before any sum or sums shall be set aside or applied to the purchase of any outstanding
shares of Stock, and before any dividend shall be declared or paid or any distribution ordered or
made upon the Stock (other than a dividend payable in shares of Stock), the Corporation shall have
complied with the dividend and sinking fund requirements (if any) set forth in any resolution or
resolutions of the Board of Directors with respect to the issue of any series of Preferred Stock of
which any shares shall at the time be outstanding.
(c) Subject to the provisions of the immediately preceding paragraph, and to such other
limitations as may be specified in any resolution or resolutions of the Board of Directors
providing for the issue of any series of Preferred Stock, the holders of outstanding shares of
Stock shall be entitled to the exclusion of the holders of shares of Preferred Stock of any and all
series, to receive such dividends payable with respect to the Stock as may be declared by the Board
of Directors from time to time.
(d) In the event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been made to the holders of shares of Preferred
Stock of the full amount to which any series of the Preferred Stock is entitled as set forth in the
resolution or resolutions of the Board of Directors providing for the issue thereof, the holders of
outstanding shares of Stock shall be entitled, to the exclusion of the holders of shares of
Preferred Stock of any and all series, to share in all remaining assets of the Corporation
available for distribution to its shareholders ratably according to the number of shares of Stock
held by them. Neither the merger nor consolidation of the Corporation with or into any other
corporation or corporations, nor the merger or consolidation of any other corporation or
corporations into or with the Corporation, nor the sale, transfer, mortgage, pledge or lease by the
Corporation of all or any part of its assets shall be deemed to be a liquidation, dissolution or
winding up of the Corporation.
(e) The Preferred Stock may be issued from time to time in one or more series of any number of
shares, except that the aggregate number of shares issued and not canceled of any and all such
series shall not exceed the total number of shares of Preferred Stock hereinabove authorized. Each
series of Preferred Stock shall be distinctively designated by number, letter or descriptive words.
A-3-
(f) Authority is hereby expressly granted to and vested in the Board of Directors to issue the
Preferred Stock at any time, or from time to time, as Preferred Stock of any one or more series,
and, in connection with the establishment of each such series, to fix by resolution or resolutions
providing for the issue of the shares thereof the voting powers, if any, and the designation,
preferences and relative rights of each such series of Preferred Stock to the full extent now or
hereafter permitted by these Amended and Restated Articles of Incorporation and the laws of the
State of Georgia, including, without limiting the generality of the foregoing, all of the following
matters which may vary between each series:
(1) The distinctive designation of such series and the number of shares which constitute such
series, which number may be increased or decreased either before or subsequent to the issuance of
any shares of such series (but not below the number of shares of such series then outstanding),
from time to time by action of the Board of Directors;
(2) The dividend rate of such series, the dates of payment thereof, and any limitations,
restrictions or conditions on the payment of dividends, including whether dividends shall be
cumulative and, if so, from which date or dates, and the relative rights of priority, if any, of
payment of dividends on the shares of each series;
(3) The price or prices at which, and the terms, times and conditions on which, the shares of
such series may be redeemed at the option of the Corporation or at the option of the holders of
such shares;
(4) The amount or amounts payable upon the shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of
priority, if any, of payment to the holders of shares of each series;
(5) Whether or not the shares of such series shall be entitled to the benefit of a purchase,
retirement or sinking fund to be applied to the redemption or purchase of such series, and if so
entitled, the amount of such fund and the manner of its application, including the price or prices
at which the shares of such series may be redeemed or purchased through the application of such
fund;
(6) Whether or not the shares of such series shall be made convertible into, or exchangeable
for, shares of any other class or classes of stock of the Corporation, or the shares of any other
series of Preferred Stock, and, if made so convertible or exchangeable, the conversion price or
prices, or the rate or rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions of such conversion or
exchange;
(7) Whether or not the shares of such series shall have any voting rights, and, if voting
rights are so granted, the extent of such voting rights and the terms and conditions under which
such voting rights may be exercised.
A-4-
(8) Whether or not the issue of any additional shares of such series or of any future series
in addition to such series shall be subject to restrictions in addition to the restrictions, if
any, on the issue of additional shares imposed in the resolution or resolutions fixing the terms of
any outstanding series of Preferred Stock theretofore issued pursuant to this Section 2(f), and, if
subject to additional restrictions, the extent of such additional restrictions; and
(9) Whether or not the shares of such series shall be entitled to the benefit of limitations
restricting the purchase of, the payment of dividends on, or the making of other distributions in
respect of stock of any class of the Corporation, and the terms of any such restrictions; provided,
however, that such restrictions shall not include any prohibition on the payment of dividends or
with respect to distributions in the event of voluntary or involuntary liquidation established for
any outstanding series of Preferred Stock theretofore issued.
VI.
None of the holders of any capital stock of the Corporation of any kind, class or series now
or hereafter authorized shall have preemptive rights with respect to any shares of capital stock of
the Corporation of any kind, class or series now or hereafter authorized.
VII.
No director of the Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for breach of his duty of care or other duty as a director;
provided, that this provision shall eliminate or limit the liability of a director only to the
extent permitted from time to time by the Code or any successor law or laws.
IN WITNESS WHEREOF, AARONS, INC., has caused these Amended and Restated Articles of
Incorporation to be executed and its corporate seal to be affixed hereto by its duly authorized
officers this 9th day of December, 2010.
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AARONS, INC.
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By:
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/s/ Gilbert L. Danielson
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Name:
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Gilbert L. Danielson
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Title:
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Executive Vice President and
Chief Financial Officer
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(CORPORATE SEAL)
A-5-
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
AARON RENTS, INC.,
AS AMENDED
ADOPTED ON NOVEMBER 13, 2007
(as amended effective December 7, 2010)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the State of Georgia, County
of Fulton.
Section 2. Other Offices. The corporation may also have offices at such other places both
within and without the State of Georgia as the board of directors may from time to time determine
and the business of the corporation may require or make desirable.
ARTICLE II
SHAREHOLDERS MEETINGS
Section 1. Annual Meetings. The annual meeting of the shareholders of the corporation shall
be held at the principal office of the corporation or at such other place in the United States as
may be determined by the board of directors, at 10:00 a.m. on the last business day of the fifth
month following the close of each fiscal year or at such other time and date following the close of
the fiscal year as shall be determined by the board of directors, for the purpose of electing
directors and transacting such other business as may properly be brought before the meeting.
Section 2. Special Meetings. (a) Special meetings of shareholders of one or more classes or
series of the corporations shares shall be called by the president or the secretary (i) when so
directed by the chairman or by a majority of the entire board of directors; or (ii) upon the demand
of holders of at least twenty five percent (25%) of all votes entitled to be cast on each issue to
be considered at a proposed special meeting of the shareholders. The business that may be
transacted at any special meeting of shareholders shall be limited to that proposed in the notice
of the special meeting given in accordance with Section 3 (including related or incidental matters
that may be necessary or appropriate to effectuate the proposed business).
(b) Promptly after the date of receipt of written shareholder demands (the Demand Date)
purporting to comply with the provisions of the Georgia Business Corporation Code, as amended from
time to time (the Code), and these by-laws, the president or the secretary of the corporation
shall determine the validity of the demand. If the demand is valid, the president or the secretary
of the corporation shall call a special shareholders meeting by mailing notice within 20 days of
the Demand Date.
(c) The time, date and place of any special shareholders meeting shall be determined by the
board of directors and shall be set forth in the notice of meeting.
Section 3. Notice of Meetings. Written notice of every meeting of shareholders, stating the
place, date and hour of the meeting, shall be given personally or by mail to each shareholder of
record not less than 10 nor more than 60 days before the date of the meeting. Such notice may be
given in any manner permitted by, and shall be deemed to be effectively given at the times as
provided in, the Georgia Business Corporation Code. A shareholders attendance at a meeting waives
objection to lack of notice or defective notice of such meeting, unless the shareholder at the
beginning of the meeting objects to the holding of the meeting or transacting business at the
meeting, and waives objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the shareholder objects to
considering the matter when it is presented. A shareholder may waive notice of a meeting before or
after the date and time
stated in the notice, which waiver must be in writing, signed by the shareholder entitled to
such notice and be delivered to the corporation for inclusion in the minutes or filing with the
corporate records.
Section 4. Quorum. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for
the transaction of business at all meetings of the shareholders except as otherwise provided by
statute, by the articles of incorporation, or by these by-laws. If a quorum is not present or
represented at any meeting of the shareholders, a majority of the shareholders entitled to vote
thereat, present in person or represented by proxy, may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as originally notified.
If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
Section 5. [Reserved.]
Section 6. Voting. When a quorum is present at any meeting,
the vote of the holders of a
majority of the stock having voting power, present in person or represented by proxy, shall decide
any question
action on a matter
brought before such meeting
is approved if the votes
cast favoring the action exceed the votes cast opposing the action
, unless the
question
matter
is one upon which by express
provision of law
, these bylaws
or of
the articles of incorporation, a different vote is required, in which case such express provision
shall govern and control the decision of the question. Each shareholder shall at every meeting of
the shareholders be entitled to one vote, in person or by proxy, for each share of the capital
stock having voting power registered in his or her name on the books of the corporation, but no
proxy shall be voted or acted upon after 11 months from its date, unless otherwise provided in the
proxy.
Section 7. Shareholder Proposals. (a) No shareholder proposal or resolution (each a
Shareholder Proposal), whether purporting to be binding or non-binding on the corporation or its
board of directors, shall be considered at any annual or special meeting of the shareholders
unless:
(i) If such Shareholder Proposal relates solely to the nomination and election of directors,
it satisfies the requirements of Article III, Section 3; or
(ii) With respect to any Shareholder Proposal to be considered at a special shareholders
meeting called pursuant to Article II, Section 2, subsection (a)(i), the shareholder(s)
proposing to make such Shareholder Proposal provided the information set forth in subsection
(b) of this Section 7 to the board of directors within 14 days after the date of the notice
calling such special shareholders meeting (or if less than 21 days notice of the meeting is
given to shareholders, such information was delivered to the president not later than the
close of the seventh day following the date on which the notice of the shareholders meeting
was mailed); or
(iii) With respect to any Shareholder Proposal to be considered at a special shareholders
meeting called pursuant to Article II, Section 2, subsection (a)(ii), the shareholder(s)
proposing to make such Shareholder Proposal provided the information set forth in subsection
(b) of this Section 7 to the board of directors concurrently with the filing of the initial
demand by shareholders relating to such special shareholders meeting; or
(iv) With respect to any Shareholder Proposal to be considered at any regular meeting of
shareholders, other than as described in clause (i) hereof, the shareholder(s) proposing to
make such Shareholder Proposal provided the information set forth in subsection (b) of this
Section 7 to the board of directors between 90 to 120 days prior to the regular meeting at
which they wish the Shareholder Proposal to be considered. For the purposes of determining
whether information was provided at the times or within the specified periods, the date of
the applicable meeting shall be as set forth in the notice of meeting given by the
corporation, and such times and periods will be determined without regard to any
postponements, deferrals or adjournments of such meeting to a later date.
(b) The following information must be provided to the board of directors, within or at the
times specified in subsection (a) above, in order for the Shareholder Proposal to be considered at
the applicable shareholders meeting:
(i) The Shareholder Proposal, as it will be proposed, in full text and in writing;
(ii) The purpose(s) for which the Shareholder Proposal is desired and the specific meeting at
which such proposal is proposed to be considered;
(iii) The name(s), address(es), and number of shares held of record by the shareholder(s)
making such Shareholder Proposal (or owned beneficially and represented by a nominee
certificate on file with the corporation);
(iv) The number of shares that have been solicited with regard to the Shareholder Proposal
and the number of shares the holders of which have agreed (in writing or otherwise) to vote
in any specific fashion on said Shareholder Proposal; and
(v) A written statement by said shareholder(s) that they intend to continue ownership of such
voting shares through the date of the meeting at which said Shareholder Proposal is proposed
to be considered.
(c) Failure to fully comply with the provisions of this Section 7 shall bar discussion of and
voting on the Shareholder Proposal at the applicable regular or special shareholders meeting. Any
Shareholder Proposal that does not comply with the requirements of this Section 7 shall be
disregarded by the chairman of the meeting, and any votes cast in support of the Shareholder
Proposal, unless the Shareholder Proposal has been validly submitted by another shareholder,
shall be disregarded by the chairman of such meeting.
(d) The provisions of this Section 7 shall be read in accordance with and so as not to
conflict with the rules and regulations promulgated by the Securities and Exchange Commission and
any stock exchange or quotation system upon which the corporations shares are traded. Nothing in
these By-laws shall be deemed to require the consideration at any meeting of shareholders of any
Shareholder Proposal that, pursuant to law, the corporation may refuse to permit consideration
thereof.
Section 8. Consent of Shareholders. Any action required or permitted to be taken at any
meeting of the shareholders may be taken without a meeting if all of the shareholders consent
thereto in writing, setting forth the action so taken. Such consent shall have the same force and
effect as a unanimous vote of shareholders.
Section 9. List of Shareholders; Inspection of Records. (a) The corporation shall keep at
its registered office or principal place of business, or at the office of its transfer agent or
registrar, a record of its shareholders, giving their names and addresses and the number, class and
series, if any, of the shares held by each. The officer who has charge of the stock transfer books of
the corporation shall prepare and make, before every meeting of shareholders or any adjournment
thereof, a complete list of the shareholders entitled to vote at the meeting or any adjournment
thereof, arranged in alphabetical order, with the address of and the number and class and series,
if any, of shares held by each. The list shall be produced and kept open at the time and place of
the meeting and shall be subject to inspection by any shareholder during the whole time of the
meeting for the purposes thereof. The said list may be the corporations regular record of
shareholders if it is arranged in alphabetical order or contains an alphabetical index.
(b) Shareholders are entitled to inspect the corporate records as and to the extent provided
by the Code; provided, however, that only shareholders owning more than two percent (2%) of the
outstanding shares of any class of the corporations stock shall be entitled to inspect (1) the
minutes from any board, board committee or shareholders meeting (including any records of action
taken thereby without a meeting); (2) the accounting records of the corporation; or (3) any
record of the shareholders of the corporation.
ARTICLE III
DIRECTORS
Section 1. Powers. Except as otherwise provided by any legal agreement among shareholders,
the property, affairs and business of the corporation shall be managed and directed by its board of
directors, which may exercise all powers of the corporation and do all lawful acts and things which
are not by law, by any legal agreement among shareholders, by the articles of incorporation or by
these by-laws directed or required to be exercised or done by the shareholders.
Section 2. Number, Election and Term. The number of directors which shall constitute
the whole board shall be eleven; provided, however, the number of directors may be increased or
decreased from time to time by the board of directors by amendment of this by-law, but no decrease
shall have the effect of shortening the term of an incumbent director.
The board shall be
divided into three classes, as nearly equal in number of directors as possible, with the term of
office of one class expiring each year. Directors shall be elected for terms of three years, and
until their successors have been duly elected and qualified or until there is a decrease in the
number of directors. The foregoing notwithstanding, each director shall serve until his successor
shall have been duly elected and qualified, unless he shall resign, die, become disqualified or
disabled, or shall otherwise be removed. Immediately following the special shareholders meeting at
which this bylaw is adopted, the then-current members of the board shall be divided as follows:
four directors shall be placed in Class I, with an initial term of office expiring at the 2011
annual meeting of shareholders; three directors shall be placed in Class II, with an initial term
of office expiring at the 2012 annual meeting of shareholders; and three directors shall be placed
in Class III, with an initial term of office expiring at the 2013 annual meeting of shareholders.
At each annual meeting, directors of the class whose terms are expiring will be elected for terms
of three years, or until their successors have been duly elected and qualified or until there is a
decrease in the number of directors.
The directors shall be elected by plurality vote at the
annual meeting of shareholders
, except as hereinafter provided, and each director elected shall
hold office until his or her successor is elected and qualified or until his or her earlier
resignation, removal from office or death
. Directors shall be natural person
s
who have
attained the age of 18 years, but need not be residents of the State of Georgia or shareholders of
the corporation.
Section 3. Nominations. (a) If any shareholder intends to nominate or cause to be
nominated any candidate for election to the board of directors (other than any candidate to be
sponsored by and proposed at the
instance of the management), such shareholder shall notify the president by first class
registered mail sent not less than 14 nor more than 50 days before the scheduled meeting of the
shareholders at which directors will be elected. However, if less than 21 days notice of the
meeting is given to shareholders, such nomination shall be delivered or mailed to the president not
later than the close of the seventh day following the date on which the notice of the shareholders
meeting was mailed. Such notification shall contain the following information with respect to each
nominee, to the extent known to the shareholder giving such notification:
(1) Name, address and principal present occupation;
(2) To the knowledge of the shareholder who proposed to make such nomination, the total
number of shares that may be voted for such proposed nominee;
(3) The names and address of the shareholders who propose to make such nomination, and the
number of shares of the corporation owned by each of such shareholders; and
(4) The following additional information with respect to each nominee: age, past
employment, education, beneficial ownership of shares in the corporation, past and present
financial standing, criminal history (including any convictions, indictments or settlements
thereof), involvement in any past or pending litigation or administrative proceedings
(including threatened involvement), relationship to and agreements (whether or not in
writing) with the shareholder(s) (and their relatives, subsidiaries and affiliates)
intending to make such nomination, past and present relationships or dealings with the
corporation or any of its subsidiaries, affiliates, directors, officers or agents, plans or
ideas for managing the affairs of the corporation (including, without limitation, any
termination of employees, any sales of corporate assets, any proposed merger, business
combination or recapitalization involving the corporation, and any proposed dissolution or
liquidation of the corporation), and all additional information relating to such person
that would be required to be disclosed, or otherwise required, pursuant to Sections 13 or
14 of the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated there under (the Exchange Act), in connection with any acquisition of shares
by such nominee or in connection with the solicitation of proxies by such nominee for his
or her election as a director, regardless of the applicability of such provisions of the
Exchange Act.
(b) Any nominations not in accordance with the provisions of this Section 3 may be disregarded
by the chairman of the meeting, and upon instruction by the chairman, votes cast for each such
nominee shall be disregarded. In the event, however, that a person should be nominated by more than
one shareholder, and if one such nomination complies with the provisions of this Section 3, such
nomination shall be honored, and all shares voted for such nominee shall be counted.
Section 4. Vacancies.
Vacancies
All vacancies
, including vacancies resulting from any
increase in the number of directors,
but not including vacancies resulting from removal from office
by the shareholders, may
shall
be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and a director so chosen shall hold
office until the next annual
election
meeting
and until his or her successor is duly
elected and qualified unless sooner displaced. If there are no directors in office, then vacancies
shall be filled through election by the shareholders.
Section 5. Meetings and Notice. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Georgia. Regular meetings of the
board of directors may be held without notice at such time and place as shall from time to time be
determined by resolution of the board. Special meetings of the board may be called by the chairman
of the board or president or by any two directors on one days oral, telegraphic or written notice
duly given or served on each director personally, or three days notice deposited, first class
postage prepaid, in the United States mail. Such notice shall state a reasonable time, date and
place of meeting, but the purpose need not be stated therein. A director may waive any notice
required by the Code, the articles of incorporation, or these by-laws before or after the date and
time of the matter to which the notice relates, by a written waiver signed by the director and
delivered to the corporation for inclusion in the minutes or filing with the corporate records.
Attendance of a director at a meeting shall constitute a waiver of notice of such meeting and
waiver of all objections to the place and time of the meeting, or the manner in which it has been
called or convened except when the director states, at the beginning of the meeting, any such
objection or objections to the transaction of business.
Section 6. Quorum. At all meetings of the board a majority of directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the board, except as may be otherwise
specifically provided by law, by the articles of incorporation, or by these by-laws. If a quorum
shall not be present at any meeting of the board, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 7. Conference Telephone Meeting. Unless the articles of incorporation or these
by-laws otherwise provide, members of the board of directors, or any committee designated by such
board, may participate in a meeting of such board or committee by means of conference telephone or
similar communications equipment whereby all persons participating in the meeting can hear each
other. Participation in such a meeting shall constitute presence in person.
Section 8. Consent of Directors. Unless otherwise restricted by the articles of
incorporation or these by-laws, any action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken without a meeting, if all members of
the board or committee, as the case may be, consent thereto in writing, setting forth the action so
taken, and the writing or writings are delivered to the corporation for inclusion in the minutes or
filing with the corporate records. Such consent shall have the same force and effect as a unanimous
vote of the board.
Section 9. Committees. The board of directors may, by resolution passed by a majority of the
whole board, designate from among its members one or more committees, each committee to consist of
two or more directors. The board may designate one or more directors as alternate members of any
committee, who may replace any absent member at any meeting of such committee. Any such committee,
to the extent provided in the resolution, shall have and may exercise all of the authority of the
board of directors in the management of the business and affairs of the corporation except that it
shall have no authority with respect to (1) amending the articles of incorporation or these
by-laws; (2) adopting a plan of merger or consolidation; (3) the sale, lease, exchange or other
disposition of all or substantially all of the property and assets of the corporation; (4) a
voluntary dissolution of the corporation or a revocation thereof; and (5) any other action limited
by law. Such committee or committees shall have such name or names as may be determined from time
to time by resolution adopted by the board of directors. A majority of each committee may determine
its action and may fix the time
and place of its meetings, unless otherwise provided by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of directors when
required.
Section 10. Removal of Directors. At any shareholders meeting with respect to which notice
of such purpose has been given, any director may be removed from office, with
or without
cause, by
the vote of shareholders representing a majority of the issued and outstanding capital stock
entitled to vote for the election of directors, and
his or her successor may be elected at the
same or any subsequent meeting of shareholders; provided that to the extent
any vacancy created by
such removal
is not filled by such an election within 60 days after such removal, the remaining
directors shall, by majority vote, be entitled to fill any such vacancy
shall be filled by a
majority of the directors then in office, though less than a quorum, or by a sole remaining
director, and a director so chosen shall hold office until the next annual meeting and until his or
her successor is duly elected and qualified unless sooner displaced
.
Section 11. Compensation of Directors. Directors shall be entitled to such reasonable
compensation for their services as directors or members of any committee of the board as shall be
fixed from time to time by resolution adopted by the board, and shall also be entitled to
reimbursement for any reasonable expenses incurred in attending any meeting of the board or any
such committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be chosen by the board of directors
and shall be a president, a secretary and a treasurer. The board of directors may also choose a
chairman of the board, one or more vice-presidents, assistant secretaries and assistant treasurers.
Any number of officers, except the offices of president and secretary may be held by the same
person. The board of directors may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
Section 2. Compensation. The salaries of all officers and agents of the corporation shall be
fixed by the board of directors or a committee or officer appointed by the board.
Section 3. Term of Office. Unless otherwise provided by resolution of the board of
directors, the principal officers shall be chosen annually by the board at the first meeting of the
board following the annual meeting of shareholders of the corporation, or as soon thereafter as is
conveniently possible. Subordinate officers may be elected from time to time. Each officer shall
serve until his or her successor shall have been chosen and qualified, or until his or her death,
resignation or removal.
Section 4. Removal. Any officer may be removed from office at any time, with or without
cause, by the board of directors whenever in its judgment the best interest of the corporation will
be served thereby.
Section 5. Vacancies. Any vacancy in an office resulting from any cause may be filled by the
board of directors.
Section 6. Powers and Duties. Except as hereinafter provided, the officers of the
corporation shall each have such powers and duties as generally pertain to their respective
officers, as well as such powers and duties as from time to time may be conferred by the board of
directors.
(a) Chairman of the Board. The chairman of the board shall preside at all meetings of the
shareholders and the board of directors. Except where by law the signature of the president is
required, the chairman shall possess the same power as the president to sign all certificates
representing shares of the corporation and all bonds, mortgages and other contracts requiring a
seal, under the seal of the corporation.
(b) Chief Executive Officer. The chief executive officer shall be the chief executive officer
of the corporation and shall in the absence of the chairman of the board preside at all meetings of
the shareholders and the board of directors, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe. Except where by law the
signature of the president is required, the chief executive officer shall possess the same power as
the president to sign all certificates representing shares of the corporation and all bonds,
mortgages and other contracts requiring a seal, under the seal of the corporation.
(c) President. The president shall in the absence of the chairman of the board and the chief
executive officer preside at all meetings of the shareholders and the board of directors. The
president shall have general and active management of the business of the corporation and shall see
that all orders and resolutions of the board of directors are carried into effect. The president
shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
(d) Chief Operating Officer. The chief operating officer shall be the chief operations
officer of the corporation. The chief operating officer shall superintend all operations of the
corporation and in the absence of the chairman of the board, the chief executive officer and the
president shall preside at all meetings of the shareholders and the board of directors, and shall
perform such other duties and have such other powers as the board of directors may from time to
time prescribe.
(e) Vice President. In the absence of the president or in the event of the presidents
inability or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-president in the order designated, or in the absence of any designation,
then in the order of their election) shall perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
(f) Secretary. The secretary shall attend all meetings of the board of directors and all
meetings of the shareholders and record all the proceedings of the meetings of the corporation and
of the board of directors in a book to be kept for that purpose and shall perform like duties for
the standing committees when required. The secretary shall give, or cause to be given, notice of
all meetings of the shareholders and special meetings of the board of directors, and shall perform
such other duties as may be prescribed by the board of directors or president, under whose
supervision the Secretary shall be. The secretary shall have custody of the corporate seal of the
corporation and the secretary, or an assistant secretary, shall have authority to affix the same to
the instrument requiring it and when so affixed, it may be attested by the secretarys signature or
by the signature of
such assistant secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by such officers
signature.
(g) Assistant Secretary. The assistant secretary or if there be more than one, the assistant
secretaries in the order determined by the board of directors (or if there be no such
determination, then in the order of their election), shall, in the absence of the secretary or in
the event of the secretarys inability or refusal to act, perform the duties and exercise the
powers of the secretary and shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe.
(h) Treasurer. The treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the corporation in such depositories as may be designated by the board of directors. The
treasurer shall disburse the funds of the corporation as may be ordered by the board of directors,
taking proper vouchers for such disbursements, and shall render to the president and the board of
directors, at its regular meetings, or when the board of directors so requires, an accounting of
all transactions as treasurer and of the financial condition of the corporation. If required by the
board of directors, the treasurer shall give the corporation a bond (which shall be renewed every
six years) in such sum and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of office of treasurer and for the restoration
to the corporation, in case of death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in such officers possession or under
the treasurers control belonging to the corporation.
(i) Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors (or if there be no such
determination, then in the order of their election) shall, in the absence of the treasurer or in
the event of the treasurers inability or refusal to act, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe.
Section 7. Voting Securities of Corporation. Unless otherwise directed by the board of
directors, the chairman of the board, and in the chairmans absence, the president shall have full
power and authority on behalf of the corporation to attend and to act and vote at any meetings of
security holders of corporations in which the corporation may hold securities, and at such meetings
shall possess and may exercise any and all rights and powers incident to the ownership of such
securities which the corporation might have possessed and exercised if it had been present. The
board of directors by resolution from time to time may confer like powers upon any other person or
persons.
ARTICLE V
CERTIFICATE
Section 1. Certificates for Shares. Shares of the corporations stock may be issued by
certificate or issued without certificate as Book Entry shares and entered on the books of the
corporation and registered as they are issued. Within a reasonable time after the issuance or
transfer of shares without certificates, the corporations transfer agent shall send the
shareholder a written notification of the information required on certificates by applicable law,
rule or regulation. Certificates, if issued, shall be in such form as the board of directors may
from time to time prescribe.
Section 2. Lost Certificates. The corporation may issue a new certificate or certificates of
stock or Book Entry shares in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or Book Entry shares, the board of directors may, in
its discretion and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his or her legal representative, to give the corporation
a bond in such sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 3. Transfers. (a) Transfers of shares of the capital stock of the corporation shall
be made only on the books of the corporation by the registered holder thereof, or by his or her
duly authorized attorney, or with a transfer clerk or transfer agent appointed as provided in
Section 5 of this Article, and,
if such shares are represented by a certificate or
certificates,
on surrender of the certificate or certificates for such shares properly
endorsed,
or for Book Entry shares, upon the presentation proper evidence of authority to
transfer by the record holder,
and the payment of all taxes thereon.
(b) The corporation shall be entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends, and to vote as such owner, and for all
other purposes, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
(c) Shares of capital stock may be transferred by (i) delivery of the certificates therefor,
accompanied either by an assignment in writing on the back of the certificates or by separate
written power of attorney to sell, assign and transfer the same, signed by the record holder,
thereof, or by his or her duly authorized attorney-in-fact, or (ii) in the case of Book Entry
shares, upon receipt of proper transfer instructions from the registered owner of such Book Entry
shares, or from a duly authorized agent or attorney. No transfer shall affect the right of the
corporation to pay any dividend upon the stock to the holder of record as the holder in fact
thereof for all purposes, and no transfer shall be valid, except between the parties thereto, until
such transfer shall have been made upon the books of the corporation as herein provided.
(d) The board may, from time to time, make such additional rules and regulations as it may
deem expedient, not inconsistent with these by-laws, the articles of incorporation or applicable
law, rule or regulation, concerning the issue, transfer and registration of shares of the capital
stock of the corporation.
Section 4. Record Date. In order that the corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall not be more than 70
days and, in case of a meeting of shareholders, not less than 10 days prior to the date on which
the particular action requiring such determination of stockholders is to be taken. If no record
date is fixed for the determination of shareholders entitled to notice of and to vote at any
meeting of shareholders, the record date shall be at the close of business on the day next
preceding the day on which the notice is given, or, if notice is waived, at the chose of business
on the day next preceding the day on which the meeting is held. If no record date is fixed for
other purposes, the record date shall be at the close of business on
the day next preceding the day on which the board of directors adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting unless the board of directors shall fix
a new record date for the adjourned meeting.
Section 5. Transfer Agent and Registrar. The board of directors may appoint one or more
transfer agents or one or more transfer clerks and one or more registrars, and may require all
certificates of stock to bear the signature or signatures of any of them.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Distributions. Distributions upon the capital stock of the corporation, subject
to the provisions of the articles of incorporation, if any, may be declared by the board of
directors at any regular or special meetings, pursuant to law. Distributions may be paid in cash,
in property, or in shares of the corporations capital stock, subject to the provisions of the
articles of incorporation. Before payment of any distribution, there may be set aside out of any
funds of the corporation available for distributions such sum or sums as the directors from time to
time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or
for equalizing distributions, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest of the corporation,
and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 2. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of
the board of directors.
Section 3. Seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words Corporate Seal and Georgia. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise. In the event it is inconvenient to use such a seal at any time, the signature of the
corporation followed by the word Seal enclosed in parentheses shall be deemed the seal of the
corporation.
Section 4. Savings Clause. To the extent these by-laws conflict with any provision of any
state or federal law as such laws may be amended from time to time, these by-laws shall be
construed so as not to conflict with said law, and any discretionary actions made hereunder shall
be made in accordance with applicable law.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification of Directors and Officers. The corporation shall indemnify,
defend and hold harmless any person (an Indemnified Person) who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action or suit by or in the
right of the corporation) by reason of the fact that he or she is or was a director or officer of
the corporation, against expenses (including, but not limited to, attorneys fees and
disbursements, court costs and expert witness fees), and against any judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection with such action,
suit or
proceeding, if he or she acted in good faith and, in the case of conduct in his or her
official capacity, in a manner he or she reasonably believed to be in the best interests of the
corporation, and in all other cases, in a manner he or she reasonably believed to not be opposed to
the best interests of the corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful; provided, in any case, that no
indemnification shall be made in respect of expenses, judgments, fines and amounts paid in
settlement attributable to circumstances as to which, under applicable provisions of the Code as in
effect from time to time, such indemnification may not be authorized by action of the board of
directors, the shareholders or otherwise.
Section 2. Indemnification of Directors and Officers for Derivative Actions. The corporation
shall indemnify, defend and hold harmless any Indemnified Person who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by or in the right of the corporation, by
reason of the fact that he or she is or was a director or officer of the corporation, against
expenses (including, but not limited to, attorneys fees and disbursements, court costs and expert
witness fees) actually and reasonably incurred by him or her in connection with such action, suit
or proceeding, if he or she acted in good faith and, in the case of conduct in his or her official
capacity, in a manner he or she reasonably believed to be in the best interests of the corporation
and in all other cases, in a manner he or she reasonably believed to not be opposed to the best
interests of the corporation. No indemnification shall be made pursuant to this Section 2 for any
claim, issue or matter as to which an Indemnified Person shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation,
or for amounts paid in settlement to the corporation, unless and only to the extent that the court
in which such action or suit was brought or other court of competent jurisdiction shall determine
upon application that such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 3. Indemnification of Employees and Agents. The board of directors shall have the
power to cause the corporation to provide to any person who is or was an employee or agent of the
corporation all or any part of the right to indemnification and other rights of the type provided
under Sections 1, 2, 6 and 12 of this Article VII (subject to the conditions, limitations,
obligations and other provisions specified herein), upon a resolution to that effect identifying
such employee or agent (by position or name) and specifying the particular rights provided, which
may be different for each employee or agent identified. Each employee or agent of the corporation
so identified shall be an Indemnified Person for purposes of the provisions of this Article VII.
Section 4. Subsidiaries and Other Organizations. The board of directors shall have the power
to cause the corporation to provide to any person who is or was a director, officer, employee or
agent of the corporation who also is or was a director, officer, trustee, partner, employee or
agent of a Subsidiary (as defined below), or is or was serving at the corporations request in such
a position with any other organization, all or any part of the right to indemnification and other
rights of the type provided under Sections 1, 2, 6 and 12 of this Article VII (subject to the
conditions, limitations, obligations and other provisions specified herein), with respect to
service by such person in such position with a Subsidiary or other organization, upon a resolution
identifying such person, the Subsidiary or other organization involved (by name or other
classification), and the particular rights provided, which may be different for each person so
identified. Each person so identified shall be an Indemnified Person for purposes of the
provisions of this Article VII. As used in this Article VII, Subsidiary shall mean (i) another
corporation, joint venture, trust, partnership or unincorporated business association more than 20%
of the voting capital stock or other voting equity interest of which was, at or after the time of
the
circumstances giving rise to such action, suit or proceeding, owned, directly or indirectly,
by the corporation; or (ii) a nonprofit corporation that receives its principal financial support
from the corporation or its Subsidiaries.
Section 5. Determination. Notwithstanding any judgment, order, settlement, conviction or
plea in any action, suit or proceeding of the kind referred to in Sections 1 and 2 of this Article
VII, an Indemnified Person shall be entitled to indemnification as provided in such Sections 1 and
2 if a determination that such Indemnified Person is entitled to such indemnification shall be made
(i) if there are two or more disinterested directors, by the board of directors by a majority vote
of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum)
or by a majority of the members of a committee of two or more disinterested directors appointed by
such a vote; or (ii) in a written opinion by special legal counsel selected as required by Section
14-2-855(b)(2) of the Code or any successor provision. To the extent that an Indemnified Person has
been successful on the merits or otherwise in defense of any action, suit or proceeding of the kind
referred to in Sections 1 and 2 of this Article VII, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him in connection therewith.
Section 6. Advances. Expenses (including, but not limited to, attorneys fees and
disbursements, court costs, and expert witness fees) incurred by an Indemnified Person in defending
any action, suit or proceeding of the kind described in Sections 1 and 2 hereof (or in Section 4
hereof if applicable to such Indemnified Person) may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding as set forth herein, if authorized as provided
herein. The corporation shall promptly pay the amount of such expenses to the Indemnified Person,
but in no event later than ten days following the Indemnified Persons delivery to the corporation
of a written request for an advance pursuant to this Section 6, together with a reasonable
accounting of such expenses; provided, however, that the Indemnified Person shall furnish the
corporation a written affirmation of his or her good faith belief that he or she has met the
standard of conduct set forth in the Code or that the proceeding involves conduct for which
liability has been eliminated under a provision of the Articles of Incorporation of the
corporation, as authorized by paragraph (4) of subsection (b) of Section 14-2-202 of the Code or
any successor provision, and a written undertaking and agreement, executed personally or on his or
her behalf, to repay to the corporation any advances made pursuant to this Section 6 if it shall be
ultimately determined that the Indemnified Person is not entitled to be indemnified by the
corporation for such amounts. The corporation shall make the advances contemplated by this Section
6 regardless of the Indemnified Persons financial ability to make repayment. Any advances and
undertakings to repay pursuant to this Section 6 shall be unsecured and interest-free.
Authorizations under this Section 6 shall be made: (1) by the board of directors: (a) when there
are two or more disinterested directors, by a majority vote of all the disinterested directors (a
majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a
committee of two or more disinterested directors appointed by such a vote; or (b) when there are
fewer than two disinterested directors, by the vote necessary for action by the board of directors
in accordance with subsection (c) of Section 14-2-824 of the Code, in which authorization,
directors who do not qualify as disinterested directors may participate; or (2) by the
shareholders, but shares owned or voted under the control of a director who at the time does not
qualify as a disinterested director with respect to the proceeding may not be voted on the
authorization.
Section 7. Non-Exclusivity. Subject to any applicable limitation imposed by the Code or the
Articles of Incorporation, the indemnification and advancement of expenses provided by or granted
pursuant to this Article VII shall not be exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any by-law, resolution or
agreement specifically or in general terms approved or
ratified by the affirmative vote of holders of a majority of the shares entitled to be cast
thereon, but shares owned or voted under the control of a director who at the time does not qualify
as a disinterested director, with respect to any existing or threatened proceeding that would be
covered by the authorization, may not be voted on the authorization.
Section 8. Insurance. The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the
corporation, or who, while a director, officer, employee, or agent of the corporation, is or was
serving as a director, officer, trustee, general partner, employee or agent of a Subsidiary or, at
the request of the corporation, of any other organization, against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power to indemnify him or her against such
liability under the provisions of this Article VII.
Section 9. Notice. If any expenses or other amounts are paid by way of indemnification,
otherwise than by court order or action by the shareholders or by an insurance carrier pursuant to
insurance maintained by the corporation, the corporation shall, not later than the next annual
meeting of shareholders, unless such meeting is held within three months from the date of such
payment, and in any event within 15 months from the date of such payment, send by first class mail
to its shareholders of record at the time entitled to vote for the election of directors a
statement specifying the persons paid, the amount paid and the nature and status at the time of
such payment of the litigation or threatened litigation.
Section 10. Security. The corporation may designate certain of its assets as collateral,
provide self-insurance or otherwise secure its obligations under this Article VII, or under any
indemnification agreement or plan of indemnification adopted and entered into in accordance with
the provisions of this Article VII, as the board of directors deems appropriate.
Section 11. Amendment. Any amendment to this Article VII that limits or otherwise adversely
affects the right of indemnification, advancement of expenses, or other rights of any Indemnified
Person hereunder shall, as to such Indemnified Person, apply only to claims, actions, suits or
proceedings based on actions, events or omissions (collectively, Post Amendment Events) occurring
after such amendment and after delivery of notice of such amendment to the Indemnified Person so
affected. Any Indemnified Person shall, as to any claim, action, suit or proceeding based on
actions, events or omissions occurring prior to the date of receipt of such notice, be entitled to
the right of indemnification, advancement of expenses and other rights under this Article VII to
the same extent as if such provisions had continued as part of the by-laws of the corporation
without such amendment. This Section 11 cannot be altered, amended or repealed in a manner
effective as to any Indemnified Person (except as to Post Amendment Events) without the prior
written consent of such Indemnified Person.
Section 12. Agreements. In addition to the rights provided in this Article VII, the
corporation shall have the power, upon authorization by the board of directors, to enter into an
agreement or agreements providing to any person who is or was a director, officer, employee or
agent of the corporation indemnification rights substantially similar to, or greater than, those
provided in this Article VII.
Section 13. Continuing Benefits. The indemnification and advancement of expenses provided by
or granted pursuant to this Article VII shall, unless otherwise provided when authorized or
ratified, continue as to
a person who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 14. Successors. For purposes of this Article VII, the terms the corporation or
this corporation shall include any corporation, joint venture, trust, partnership or
unincorporated business association that is the successor to all or substantially all of the
business or assets of this corporation, as a result of merger, consolidation, sale, liquidation or
otherwise, and any such successor shall be liable to the persons indemnified under this Article VII
on the same terms and conditions and to the same extent as this corporation.
Section 15. Severability. Each of the sections of this Article VII, and each of the clauses
set forth herein, shall be deemed separate and independent, and should any part of any such section
or clause be declared invalid or unenforceable by any court of competent jurisdiction, such
invalidity or unenforceability shall in no way render invalid or unenforceable any other part
thereof or any other separate section or clause of this Article VII that is not declared invalid or
unenforceable.
Section 16. Additional Indemnification. In addition to the specific indemnification rights
set forth herein, the corporation shall indemnify each of its directors and officers to the full
extent permitted by action of the board of directors without shareholder approval under the Code or
other laws of the State of Georgia as in effect from time to time.
ARTICLE VIII
AMENDMENTS
The board of directors shall have power to alter, amend or repeal the by-laws by majority vote
of all of the directors, but any by-laws adopted by the board of directors may be altered, amended
or repealed and new by-laws adopted, by the shareholders by majority vote of all of the shares
having voting power.