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TABLE OF CONTENTS
Table of Contents
As filed with the Securities and Exchange Commission on November 22, 2017
Registration Statement No. 333-          

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 WASHINGTON, D.C. 20549

FORM S-3
 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

BOOT BARN HOLDINGS, INC.
 (Exact Name of Registrant as Specified in Its Charter)

			
Delaware 
(State or Other Jurisdiction of
Incorporation or Organization)	 	90-0776290 
(I.R.S. Employer
Identification No.)	
15345 Barranca Parkway
Irvine, California 92618
(949) 453-4400 
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)

James G. Conroy
Boot Barn Holdings, Inc.
President and Chief Executive Officer
15345 Barranca Parkway
Irvine, California 92618
(949) 453-4400
(816) 701-4739 fax
 (Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:
Howard A. Kenny
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
(212) 309-6001 fax

Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
             If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.     o
             If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.     ý
             If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o
             If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o
             If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.     o
             If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.     o
             Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See definitions of "large accelerated filer", "accelerated filer", "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  o	 	Accelerated filer  ý	 	Non-accelerated filer  o
 (Do not check if a
smaller reporting company)	 	 Smaller reporting company  o
Emerging growth company  ý	
             If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ý

CALCULATION OF REGISTRATION FEE

	 	 	 	 	 	 	 	 	
 	
Title of each class of securities
to be registered(1)	 	Amount to be
registered(1)	 	Proposed maximum
offering price(1)(2)	 	Proposed maximum
aggregate offering
price(1)(2)	 	Amount of
registration fee	
 	
Common stock, par value $0.0001 per share	 	—	 	—	 	—	 	—	
 	
Preferred Stock, par value $0.0001 per share	 	—	 	—	 	—	 	—	
 	
Warrants	 	—	 	—	 	—	 	—	
 	
Senior or Subordinated Debt Securities(3)	 	—	 	—	 	—	 	—	
 	
Guarantees of Debt Securities (4)	 	—	 	—	 	—	 	—	
 	
Depository Shares	 	—	 	—	 	—	 	—	
 	
Total	 	—	 	—	 	$300,000,000	 	$37,350 (5)(6)	
 	
(1)
There are being registered pursuant to this registration statement such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate amount of warrants and such indeterminate amount of depository shares as may be offered from time to time pursuant to the prospectus contained in the registration statement with an aggregate initial offering price not to exceed $300,000,000 or the equivalent thereof in foreign currencies. The securities registered hereunder may be sold by the issuer separately, together or as units with other securities registered hereunder. The securities to be sold by selling stockholders will be shares of common stock only. There are also being registered hereunder contracts that may be issued by the registrants under which the counterparty may be required to purchase or sell the other securities registered hereunder. These contracts would be issued together with securities registered hereunder. There are also being registered hereunder an indeterminate amount or number of the securities as may be issuable upon conversion or exchange of debt securities, preferred stock or warrants or pursuant to anti-dilution provisions thereof. If any debt securities are issued at an original issue discount, the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $300,000,000, less the aggregate dollar amount of all securities previously issued pursuant to this registration statement. Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities.

(2)
Pursuant to Rule 457(o) and Form S-3 General Instruction II.D., which permit the registration fee to be calculated on the basis of the maximum offering price of all securities listed, the table does not specify information as to the amount of any particular security to be registered.

(3)
The debt securities may be issued without guarantees or may be guaranteed by one or more of the registrants named below under "Table of Additional Registrants."

(4)
The guarantees of debt securities may be issued by one or more of the registrants named below under "Table of Additional Registrants" and may be issued without consideration. Pursuant to Rule 457(n), no registration fee is payable with respect to any such guarantees.

(5)
Calculated pursuant to Rule 457(o) under the Securities Act of 1933.

(6)
Pursuant to Rule 457(p), the registration fee will be offset by the amount of $22,776.57, paid by the registrant as the registration fee in respect of the registrant's Form S-1 Registration Statement (Registration No. 333-205971) filed July 31, 2015 and withdrawn November 20, 2015.
              EACH OF THE REGISTRANTS HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.

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 TABLE OF ADDITIONAL REGISTRANTS*

Exact Name of Additional
Registrant as Specified in its Charter 	 	State or Other Jurisdiction of
Incorporation or Organization	 	I.R.S. Employer Identification No.	
Baskins Acquisition Holdings, LLC	 	Delaware	 	27-0305335	
Boot Barn, Inc. 	 	Delaware	 	26-1081729	
RCC Western Stores, Inc. 	 	South Dakota	 	46-0402300	
Sheplers Holding Corporation	 	Delaware	 	26-0406901	
Sheplers, Inc. 	 	Kansas	 	26-0604311	

*
Boot Barn, Inc. is a subsidiary of Boot Barn Holdings, Inc. Baskins Acquisition Holdings, LLC, RCC Western Stores, Inc. and Sheplers Holding Corporation are subsidiaries of Boot Barn, Inc. The address including zip code, and telephone number, including area code, of Boot Barn, Inc., Baskin Acquistion Holdings, LLC and RCC Western Stores, Inc. is 15345 Barranca Parkway Irvine, California 92618, (949) 453-4400. Sheplers, Inc. is a subsidiary of Sheplers Holding Corporation. The address including zip code, and telephone number, including area code, of Sheplers Holding Corporation and Sheplers, Inc. is 6501 West Kellogg Drive, Wichita, Kansas 67209, (316) 946-3786.

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The information in this prospectus is not complete and may be changed. No securities may be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, Dated: November 22, 2017
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Depository Shares

Boot Barn Holdings, Inc.
15345 Barranca Parkway
Irvine, California 92618
(949) 453-4400

        We may offer from time to time:
•
Shares of our common stock; 

•
Shares of our preferred stock; 

•
Warrants to purchase any of the other securities that may be sold under this prospectus; 

•
Debt securities which may or may not be guaranteed by one or more of our subsidiaries, Baskins Acquisition Holdings, LLC, Boot Barn, Inc., RCC Western Stores, Inc., Sheplers Holding Corporation and Sheplers, Inc.; 

•
Depository shares representing fractional shares of a particular series of preferred stock; and 

•
Any combination of these securities.
        Selling stockholders may also offer shares of our common stock from time to time in connection with this offering. The securities we and/or selling stockholders offer will have an aggregate public offering price of up to $300 million. We will provide specific terms of any offering, including the price to the public of the securities, in supplements to this prospectus. These securities may be offered separately or together in any combination and as separate series. You should read this prospectus and any applicable prospectus supplement and free writing prospectus carefully before you invest in our securities.
        We and/or selling stockholders may sell these securities on a continuous or delayed basis directly, through agents, dealers or underwriters as designated from time to time, or through a combination of these methods. For additional information on the methods of sale, you should refer to the section entitled "Plan of Distribution". We and/or selling stockholders, as applicable, reserve the sole right to accept, and together with any agents, dealers and underwriters, reserve the right to reject, in whole or in part, any proposed purchase of securities. If any agents, dealers or underwriters are involved in the sale of any securities, the applicable prospectus supplement will set forth any applicable commissions or discounts. Our net proceeds, and the net proceeds of any selling stockholders, if applicable, from the sale of securities also will be set forth in the applicable prospectus supplement. The prospectus supplement will also contain more specific information about the offering, including the names of any selling stockholders, if applicable.
        Our common stock is listed on the New York Stock Exchange under the symbol "BOOT".

INVESTING IN OUR SECURITIES INVOLVES RISKS.
SEE " RISK FACTORS " ON PAGE 4.
         We are an "emerging growth company" as defined in Section 2(a) of the Securities Act of 1933, as amended (the "Securities Act") and are subject to reduced public company reporting requirements.
         Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

         The date of this prospectus is                        , 2017

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 TABLE OF CONTENTS

ABOUT THIS PROSPECTUS	 	1	
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS	 	1	
OUR COMPANY	 	3	
RISK FACTORS	 	4	
RATIO OF EARNINGS TO FIXED CHARGES	 	4	
USE OF PROCEEDS	 	4	
GENERAL DESCRIPTION OF SECURITIES THAT WE MAY SELL	 	4	
DESCRIPTION OF CAPITAL STOCK	 	4	
DESCRIPTION OF WARRANTS	 	9	
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES	 	10	
DESCRIPTION OF DEPOSITORY SHARES	 	21	
SELLING STOCKHOLDERS	 	22	
PLAN OF DISTRIBUTION	 	22	
LEGAL MATTERS	 	24	
EXPERTS	 	24	
WHERE YOU CAN FIND MORE INFORMATION	 	24	
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE	 	25	
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        In this prospectus, "Boot Barn" refers to Boot Barn Holdings, Inc.
        In this prospectus, "we," "us," and "our" refer to Boot Barn Holdings, Inc. and its subsidiaries.
        In this prospectus, references to "common stock," "preferred stock", "debt securities" and "warrants" are to the common stock and preferred stock of Boot Barn, and warrants or debt securities issued by Boot Barn.
        You should rely only on information contained or incorporated by reference in this prospectus. Neither we nor selling stockholders have authorized any person to provide you with information that differs from what is contained or incorporated by reference in this prospectus. If any person does provide you with information that differs from what is contained or incorporated by reference in this prospectus, you should not rely on it. This prospectus is not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which it relates, or an offer or solicitation in any jurisdiction where offers or sales are not permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, even though this prospectus may be delivered or securities may be sold under this prospectus on a later date. Our business, financial condition, results of operation and prospects may have changed since those dates.

 About This Prospectus
        This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using a "shelf" registration process. Under the shelf registration process, we may from time to time, offer and sell to the public any or all of the securities described in the registration statement in one or more offerings, and the selling stockholders may from time to time offer and sell shares of our common stock in one or more offerings.
        This prospectus provides you with a general description of the securities we and/or selling stockholders may offer. Each time securities are offered, we or the selling stockholders, if applicable, will provide a prospectus supplement that will describe the specific amounts, prices, and terms of the securities we offer. The prospectus supplement will contain more specific information about the offering, including the names of any selling stockholders, if applicable. The prospectus supplement also may add, update, or change information contained in this prospectus. This prospectus, together with applicable prospectus supplements, includes all material information relating to this offering. If there is any inconsistency between the information in this prospectus and the information in the accompanying prospectus supplement, you should rely on the information in the prospectus supplement. Please carefully read both this prospectus and any prospectus supplement together with the additional information described below under the section entitled "Incorporation of Certain Documents by Reference."
        We and/or selling stockholders may sell the securities to or through underwriters, dealers, or agents or directly to purchasers. We and our agents and the selling stockholders reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. A prospectus supplement, which we or the selling stockholders will provide each time securities are offered, will provide the names of any underwriters, dealers or agents involved in the sale of the securities, and any applicable fee, commission, or discount arrangements with them.
        References to our "Form 10-K" refer to our Annual Report on Form 10-K for the fiscal year ended April 1, 2017, filed on June 7, 2017, and references to our "Second Quarter Form 10-Q" refer to our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, filed on November 6, 2017.

 Special Note Regarding Forward-Looking Statements
        This prospectus and the documents incorporated by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act
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of 1939; as amended (the "Exchange Act"). All statements other than statements of historical or current fact included in this annual report are forward-looking statements. Forward-looking statements refer to our current expectations and projections relating to, by way of example and without limitation, our financial condition, liquidity, profitability, results of operations, margins, plans, objectives, strategies, future performance, business and industry. You can identify forward-looking statements by the fact that they do not relate strictly to historical or current facts. These statements may include words such as "anticipate", "estimate", "expect", "project", "plan", "intend", "believe", "may", "might", "will", "could", "should", "can have", "likely" and other words and terms of similar meaning in connection with any discussion of the timing or nature of future operating or financial performance or other events, but not all forward-looking statements contain these identifying words. For example, all statements we make relating to our estimated and projected earnings, revenues, costs, expenditures, cash flows, growth rates and financial results, our plans and objectives for future operations, growth or initiatives, strategies or the expected outcome or impact of pending or threatened litigation are forward-looking statements. Forward-looking statements are subject to risks and uncertainties. We believe the risks attending any forward-looking statements include, but are not limited to, those described under "Risk Factors" and include, among other things:
•
risks related to levels of consumer spending and economic conditions; 

•
risks related to our ability to maintain and enhance a strong brand image and compete effectively; 

•
risks related to conditions in the foreign countries in which our products are manufactured and other risks of international trade; 

•
risks related to our growth, including opening new stores in new and existing geographic markets; 

•
risks related to our distribution model; 

•
risks related to our dependence on third party suppliers; 

•
risks related to our exclusive product offerings; 

•
risks related to retention of our key executive management and other talent required for our business, as well as costs related to wage and benefits; 

•
risks related to our indebtedness; 

•
risks related to our management information systems; 

•
risks relating to our e-commerce business; 

•
risks relating to the seasonality of our business; 

•
risks relating to celebrity endorsements of our products; 

•
risks related to intellectual property; and 

•
litigation costs and the outcomes of litigation.
        We derive many of our forward-looking statements from our current operating budgets and forecasts, which are based upon detailed assumptions. While we believe that our assumptions are reasonable, we caution that it is very difficult to predict the impact of known factors, and it is impossible for us to anticipate all factors that could affect our actual results. For these reasons, we caution readers not to place undue reliance on these forward-looking statements.
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 SUMMARY
         This summary highlights selected information contained in or incorporated by reference into this prospectus and does not contain all of the information that is important to you. This summary is qualified in its entirety by the more detailed information included in or incorporated by reference into this prospectus. Before making your investment decision with respect to our securities, you should carefully read this entire prospectus, any applicable prospectus supplement and the documents referred to in "Where You Can Find More Information" and "Incorporation of Documents by Reference."

 Our Company
        We believe that Boot Barn is the largest lifestyle retail chain devoted to western and work-related footwear, apparel and accessories in the United States. As of November 19, 2017, we operated 225 stores in 31 states, as well as an e-commerce channel, consisting of www.bootbarn.com, www.sheplers.com and www.countryoutfitter.com. Our product offering is anchored by an extensive selection of western and work boots and is complemented by a wide assortment of coordinating apparel and accessories. Our stores feature a comprehensive assortment of brands and styles, coupled with attentive, knowledgeable store associates. Many of the items that we offer are basics or necessities for our customers' daily lives and typically represent enduring styles that are not meaningfully impacted by changing fashion trends.
        We strive to offer an authentic, one-stop shopping experience that fulfills the everyday lifestyle needs of our customers, and as a result, many of our customers make purchases in both the western and work wear sections of our stores. We target a broad and growing demographic, ranging from passionate western and country enthusiasts, to workers seeking dependable, high-quality footwear and apparel. Our broad geographic footprint, which comprises approximately three times as many stores as our nearest direct competitor that sells primarily western and work wear, provides us with significant economies of scale, enhanced supplier relationships, the ability to recruit and retain high-quality store associates and the ability to reinvest in our business at levels that we believe exceed those of our competition.
        Boot Barn was founded in 1978 and, over the past 39 years, has grown both organically and through successful strategic acquisitions of competing chains. We have rebranded and remerchandised the acquired chains under the Boot Barn banner. We believe that our business model and scale provide us with competitive advantages that have contributed to our consistent and strong financial performance, generating sufficient cash flow to support national growth.

 Executive Offices
        Our executive offices are located at 15345 Barranca Parkway, Irvine, California. Our telephone number is (949) 453-4400. Our website is located at www.bootbarn.com. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this prospectus.
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 Risk Factors
        Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described under "Risk Factors" in our Form 10-K and Second Quarter Form 10-Q, and any updates to those risk factors or new risk factors contained in any subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K filed with the SEC, all of which are incorporated by reference herein, and any risk factors contained in any prospectus supplement, together with all of the other information included or incorporated by reference in this prospectus and in any prospectus supplement, including our consolidated financial statements and related notes, before deciding whether to purchase shares of our common stock. Any of these risks could materially and adversely affect our business, operating results, financial condition, or prospects and cause the value of our common stock to decline, which could cause you to lose all or part of your investment.

 Ratio of Earnings to Fixed Charges
        If we offer debt securities and/or preferred stock securities under this prospectus, then we will, at that time, provide a ratio of earnings to fixed charges and/or ratio of combined fixed charges and preferred dividends to earnings, respectively, in the applicable prospectus supplement for such offering.

 Use of Proceeds
        We intend to use the net proceeds from any sale of securities by us for working capital, store growth and other general corporate purposes. In the case of a sale of common stock by any selling stockholders, we will not receive any of the proceeds from such sale.

 General Description of Securities That We May Sell
        We may offer and sell, at any time and from time to time:
•
Shares of our common stock, par value $0.0001 per share; 

•
Shares of our preferred stock, par value $0.0001 per share; 

•
Warrants to purchase any of the other securities that may be sold under this prospectus; 

•
Our debt securities, in one or more series, which may be senior debt securities or subordinated debt securities and which may be guaranteed by one or more of the subsidiaries identified in this prospectus, in each case consisting of notes or other unsecured evidences of indebtedness; 

•
Depository shares representing fractional shares of a particular series of preferred stock; or 

•
Any combination of these securities.
        Selling stockholders may also offer shares of our common stock from time to time in connection with this offering. The terms of any securities offered will be determined at the time of sale. We may issue debt securities that are exchangeable for and/or convertible into common stock or any of the other securities that may be sold under this prospectus. When particular securities are offered, a supplement to this prospectus will be filed with the SEC, which will describe the terms of the offering and sale of the offered securities.

 Description of Capital Stock
        The following description of our capital stock is not complete and is subject to and qualified in its entirety by our amended and restated certificate of incorporation and bylaws, which are included as exhibits to the registration statement of which this prospectus forms a part, and by the provisions of applicable Delaware law.
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 Authorized and Outstanding Shares
        Our authorized capital stock consists of 100,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share.
        As of November 20, 2017, there were 26,667,221 shares of our common stock outstanding, which were held by 25 stockholders of record and no shares of preferred stock outstanding.
 Common Stock
        Holders of shares of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. Our amended and restated certificate of incorporation does not provide for cumulative voting rights, which means that the holders of a majority of our shares of common stock can elect all of the directors then standing for election.
        Holders of shares of our common stock are entitled to receive pro rata dividends when and if declared by our board of directors out of funds legally available therefor, subject to any statutory or contractual restrictions on the payment of dividends and to any restrictions on the payment of dividends imposed by the terms of any series of preferred stock that we may designate in the future.
        Upon our dissolution or liquidation or the sale of all or substantially all of our assets, after payment in full of all amounts required to be paid to creditors and to the holders of preferred stock having liquidation preferences, if any, the holders of shares of our common stock will be entitled to receive pro rata our remaining assets available for distribution.
        Holders of shares of our common stock do not have preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of the holders of shares of our common stock are subject to, and may be adversely affected by, the rights of the holders of any shares of any series of preferred stock that we may designate in the future.
 Preferred Stock
        Our amended and restated certificate of incorporation authorizes our board of directors to issue up to 10,000,000 shares of preferred stock in one or more series (including convertible preferred stock). Unless required by law or by any stock exchange, the authorized shares of preferred stock will be available for issuance without further action by our stockholders. We will describe the particular terms of any series of preferred stock offered pursuant hereto in the applicable prospectus supplement.
        Our board of directors is able to determine, with respect to any series of preferred stock, the terms and rights of that series, including:
•
the designation of the series; 

•
the number of shares of the series, which our board may, except where otherwise provided in the preferred stock designation, increase or decrease, but not below the number of shares of that series then outstanding; 

•
the voting rights, if any, of the holders of the series; 

•
whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series; 

•
the dates at which dividends, if any, will be payable; 

•
the rights of priority and amounts payable, if any, on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of our company; 

•
the redemption rights and price or prices, if any, for shares of the series; 

•
the terms of any purchase, retirement or sinking fund, if any, provided for shares of the series;
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•
the terms, if any, upon which the shares of the series will be convertible into or exchangeable for shares of any other class, classes or series, or other securities, whether issued by our company or by any other entity; 

•
restrictions, if any, upon issuance of indebtedness of our company so long as any shares of the series are outstanding; and 

•
restrictions, if any, on the issuance of shares of the same series or of any other class or series.
        The issuance of preferred stock may adversely affect the rights of holders of our common stock by, among other things:
•
restricting dividends on the common stock; 

•
diluting the voting power of the common stock; 

•
impairing the liquidation rights of the common stock; or 

•
discouraging, delaying or preventing a change in control of our company without further action by the stockholders.
        As a result of these or other factors, the issuance of preferred stock could have an adverse impact on the market price of our common stock. We have no present plans to issue any shares of preferred stock.
 Authorized but unissued capital stock
        The Delaware General Corporation Law ("DGCL") does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of the NYSE, which will apply so long as the Common stock remains listed on the NYSE, require stockholder approval of certain issuances equal to or exceeding 20% of the then outstanding voting power or then outstanding number of shares of common stock. These additional shares may be used for a variety of corporate purposes, including future public offerings, to raise additional capital or to facilitate acquisitions.
 Anti-takeover effects of our amended and restated certificate of incorporation and amended and restated bylaws and provisions of Delaware law
 Undesignated preferred stock
        As discussed above, the ability to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with super voting, special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us or otherwise effect a change in control of us. These and other provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company. Such provisions may also impede or discourage transactions that some, or a majority, of our stockholders might believe to be in their best interests, or in which our stockholders might receive a premium for their shares of common stock over the market price for such shares.
 Requirements for advance notification of stockholder meetings, nominations and proposals; board vacancies
        Our amended and restated bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors. In order for any matter to be "properly brought" before a meeting, a stockholder will have to comply with advance notice requirements and provide us with certain information. Additionally, vacancies and newly created directorships may be filled only by a vote of a majority of the directors then in office, even though less than a quorum, and not by the stockholders. These provisions may also defer, delay or discourage a potential acquirer from
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conducting a solicitation of proxies to elect the acquirer's own slate of directors or otherwise attempting to obtain control of our company.
 Amendments to our amended and restated certificate of incorporation and amended and restated bylaws
        The DGCL provides that, unless a corporation's certificate of incorporation provides otherwise, the affirmative vote of holders of shares constituting a majority of the votes of all shares entitled to vote may approve amendments to the certificate of incorporation. Our amended and restated certificate of incorporation does not provide for any different approval requirement.
        Our amended and restated certificate of incorporation authorizes our board of directors to adopt, amend, add to, modify or repeal our amended and restated bylaws without stockholder approval.
 Limitations on stockholder action by written consent
        Our amended and restated bylaws prohibits the taking of any action of our stockholders by written consent without a meeting, unless that action is taken with regard to a matter that has been approved by our board of directors or requires the approval only of certain classes or series of our stock. This may lengthen the amount of time required to take stockholder action.
 Exclusive venue
        Our amended and restated certificate of incorporation requires, to the fullest extent permitted by law, that (1) any derivative action or proceeding brought on our behalf, (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders, (3) any action asserting a claim against us arising pursuant to any provision of the DGCL or our amended and restated certificate of incorporation or amended and restated bylaws and (4) any action asserting a claim against us governed by the internal affairs doctrine will have to be brought in the Court of Chancery of the State of Delaware unless we consent in writing to an alternative forum. Although we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers.
 Stockholder meetings
        Our amended and restated certificate of incorporation provides that special meetings of the stockholders may be called only by or at the direction of our board of directors. Our amended and restated bylaws allows the presiding officer at a meeting of the stockholders to adopt rules and regulations for the conduct of meetings which may have the effect of precluding the conduct of certain business at a meeting if the rules and regulations are not followed. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company.
 No cumulative voting
        The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless our amended and restated certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation does not provide for cumulative voting. The absence of cumulative voting makes it more difficult for a minority stockholder to elect a director to our board.
 Delaware anti-takeover statute
        We have not opted out of, and therefore are subject to, Section 203 of the DGCL. In general, Section 203 prohibits a publicly held Delaware corporation from engaging, under certain circumstances, in
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a business combination with an interested stockholder for a period of three years following the date the person became an interested stockholder unless:
•
prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; 

•
upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or 

•
on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock which is not owned by the interested stockholder.
        These provisions generally prohibit or delay the accomplishment of mergers, assets or stock sales or other takeover or change-in-control attempts that are not approved by a company's board of directors. Generally, a business combination includes a merger, an asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An interested stockholder is a person who, together with affiliates and associates, owns or, within three years prior to the determination of interested stockholder status, did own 15% or more of a corporation's outstanding voting stock. We expect that Section 203 would have an anti-takeover effect with respect to transactions our board of directors does not approve in advance. In such event, we would also anticipate that Section 203 could defer, delay or discourage offers or takeover attempts that might result in a premium over the market price for the shares of common stock held by our stockholders.
        The provisions of Section 203 may encourage companies interested in acquiring our company to negotiate in advance with our board of directors because the supermajority stockholder approval requirement would be avoided if our board of directors approves either the business combination or the transaction that results in the stockholder becoming an interested stockholder. These provisions also may make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
 Corporate opportunity
        Our amended and restated certificate of incorporation provides that neither Freeman Spogli & Co. nor its affiliates have any duty to refrain from engaging directly or indirectly in a corporate opportunity in the same or similar lines of business in which we now engage or propose to engage. In addition, in the event that Freeman Spogli & Co. acquires knowledge of a potential transaction or other business or employee thereof, it shall not be liable to us nor to any of our stockholders (or any affiliates thereof) for breach of any fiduciary or other duty by engaging in any such activity and we waive and renounce any claim based on such activity. This provision applies even if the business opportunity is one that we might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so.
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 Indemnification
        We have agreed to indemnify each of our stockholders who have registration rights against certain liabilities in connection with a demand or piggyback registration of shares of our common stock, including under the Securities Act.
 Market listing
        Our common stock trades on the NYSE under the symbol "BOOT."
 Transfer agent and registrar
        The transfer agent and registrar for our common stock is ComputerShare Trust Company, N.A.
 Registration Rights
        In addition to rights of sale under Rule 144, several of our existing stockholders will have registration rights in the event of an offering pursuant hereto which enable them to include their shares in a registration statement we file to allow for the resale of their shares to the public. In addition, in the event of an offering of common stock pursuant hereto, Freeman Spogli & Co. will be able to exercise one remaining demand registration right, which would require us to register for resale under the Securities Act its shares of common stock. If any registration rights are exercised, we will generally be responsible for all registration and offering expenses other than underwriter fees, discounts and commissions.

 Description of Warrants
        The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the warrants that we may offer and sell under this prospectus and any related warrant agreements and warrant certificates. While the terms we have summarized below will apply generally to any warrants offered, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement, which may differ from the terms we describe below.
 General
        We may issue, and we may offer and sell, together with other securities or separately, warrants to purchase our preferred stock, debt, common stock or other securities. Warrants may be issued directly to the purchasers of the warrants or under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as set forth in the applicable prospectus supplement. A warrant agent will act solely as our agent in connection with the warrants of the series being offered and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants
        The prospectus supplement will describe, among other things, the following terms, where applicable, of warrants that we may offer:
•
the title of the warrants; 

•
the designation, amount and terms of the securities for which the warrants are exercisable and the procedures and conditions relating to the exercise of such warrants; 

•
the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each such security; 

•
the price or prices at which the warrants will be issued and any terms for the adjustment of the price or prices; 

•
the aggregate number of warrants;
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•
any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants; 

•
the price or prices at which the securities purchasable upon exercise of the warrants may be purchased, including provisions for adjustment of the exercise price of the warrant; 

•
if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; 

•
if applicable, a discussion of the material U.S. federal income tax considerations applicable to the exercise of the warrants; 

•
any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; 

•
the date on which the right to exercise the warrants shall commence, and the date on which the right shall expire; and 

•
the maximum or minimum number of warrants which may be exercised at any time.
        Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
 Exercise of Warrants
        Each warrant will entitle the holder thereof to purchase for cash the amount of debt securities or number of shares of preferred stock or common stock at the exercise price as will in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
        Warrants may be exercised as set forth in the applicable prospectus supplement relating to the warrants offered thereby. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased securities. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
 Enforceability of Rights of Holders of Warrants
        Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, that holder's warrants.

 Description of Debt Securities and Guarantees
        We may issue debt securities in one or more distinct series. This section summarizes the terms of the debt securities that are common to all series. Most of the financial terms and other specific terms of any series of debt securities that we offer will be described in a prospectus supplement to be attached to the front of this prospectus. Since the terms of specific debt securities may differ from the general information
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we have provided below, if any information contained in a prospectus supplement contradicts the information below, you should rely on information in the prospectus supplement.
        The debt securities will be governed by an "indenture" to be entered into by us, any guarantor and Wells Fargo Bank, National Association as trustee (the "trustee"). An indenture is a contract between us and a financial institution acting as trustee. The trustee has two main roles. First, the trustee can enforce the rights of holders of the debt securities under the indenture against us if we default. There are some limitations on the extent to which the trustee acts on behalf of holders of the debt securities, described below under "—Events of Default." Second, the trustee performs certain administrative duties for us.
        The debt securities will be either senior debt securities or subordinated debt securities. We will issue the senior debt securities under a senior indenture between us, any guarantor and the trustee. We will issue the subordinated debt securities under a subordinated indenture between us, any guarantor and the trustee. The senior indenture and the subordinated indenture are collectively referred to in this prospectus as the indenture. Any debt securities issued by us may be guaranteed by one or more of our subsidiaries, each of which we refer to in this section as a guarantor. Unless otherwise specified in a prospectus supplement the debt securities will be direct unsecured obligations of Boot Barn.
        Because this section is a summary, it does not describe every aspect of the debt securities, the indenture, and any guarantee of any debt securities. We urge you to read the indenture because it, and not this description, defines your rights as a holder of debt securities. For example, in this section, we use capitalized words to signify terms that are specifically defined in the indenture. Some of the definitions are repeated in this prospectus, but for the rest you will need to read the indenture. We have filed the form of the indenture as an exhibit to the registration statement that we have filed with the SEC. See "Where You Can Find More Information," below, for information on how to obtain a copy of the indenture. In addition, most of the financial terms and other specific terms of any series of debt securities that we offer will be described in the applicable prospectus supplement.
 General
        Each series of debt securities, unless specified otherwise in the prospectus supplement, will be unsecured obligations of Boot Barn. Any senior unsecured debt securities that we issue will rank equally with all other unsecured and unsubordinated indebtedness of us. Any subordinated debt securities that we issue will be expressly subordinated in right of payment to the prior payment in full of our senior indebtedness. In addition, unless otherwise specified in the applicable prospectus supplement, the debt securities will be structurally subordinated to all existing and future liabilities, including trade payables, of our subsidiaries that do not guarantee the debt securities, and the claims of creditors of those subsidiaries, including trade creditors, will have priority as to the assets and cash flows of those subsidiaries.
        Any debt securities proposed to be sold under this prospectus and the attached prospectus supplement ("offered debt securities") and any debt securities issuable upon conversion or exchange of other offered securities ("underlying debt securities"), may be issued under the indenture in one or more series.
        You should read the prospectus supplement for the terms of the offered debt securities, including the following:
•
the title of the debt securities and whether the debt securities will be senior debt securities or subordinated debt securities of Boot Barn; 

•
the total principal amount of the debt securities and any limit on the total principal amount of debt securities of the series; 

•
the price or prices at which Boot Barn will offer the debt securities;
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•
if not the entire principal amount of the debt securities, the portion of the principal amount payable upon acceleration of the maturity of the debt securities or how this portion will be determined; 

•
the date or dates, or how the date or dates will be determined or extended, when the principal of the debt securities will be payable; 

•
the interest rate or rates, which may be fixed or variable, that the debt securities will bear, if any, or how the rate or rates will be determined, the date or dates from which any interest will accrue or how the date or dates will be determined, the interest payment dates, any record dates for these payments and the basis upon which interest will be calculated, if other than that of a 360-day year of twelve 30-day months; 

•
any optional redemption provisions; 

•
any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities; 

•
if other than U.S. dollars, the currency or currencies of the debt securities; 

•
whether the amount of payments of principal, premium or interest, if any, on the debt securities will be determined with reference to an index, formula or other method, which could be based on one or more currencies, commodities, equity indices or other indices, and how these amounts will be determined; 

•
the place or places, if any, other than or in addition to the corporate trust office of the trustee, of payment, transfer, conversion and/or exchange of the debt securities; 

•
if the denominations in which the offered debt securities will be issued are other than denominations of $2,000 or any integral multiple of $1,000 in excess thereof; 

•
the applicability of defeasance provisions of the indenture and any provisions in modification of, in addition to, or in lieu of, any of these provisions; 

•
any provisions granting special rights to the holders of the debt securities upon the occurrence of specified events; 

•
any changes or additions to the events of default or covenants contained in the indenture; 

•
whether the debt securities will be convertible into or exchangeable for any other securities and the applicable terms and conditions; 

•
the terms of any guarantees by any of our subsidiaries; 

•
subordination provisions, if any, that will apply, to the extent different from those set forth below; 

•
the form of note or other instrument representing the debt if not issued in book entry form; and 

•
any other terms of the debt securities.
 Covenants
        The supplemental indenture with respect to any particular series of debt securities may contain covenants including, without limitation, covenants restricting or limiting:
•
the incurrence of additional debt, including guarantees, by us and our subsidiaries; 

•
the making of various payments, including dividends, by us and our subsidiaries; 

•
our business activities and those of our subsidiaries; 

•
the issuance of other securities by our subsidiaries;
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•
asset dispositions; 

•
sale-leaseback transactions; 

•
transactions with affiliates; 

•
a change of control; 

•
the incurrence of liens; and 

•
mergers and consolidations involving us and our subsidiaries.
        For purposes of this prospectus, any reference to the payment of principal of or premium or interest, if any, on debt securities will include additional amounts if required by the terms of the debt securities, subject to the maximum offering amount under this prospectus.
        The indenture does not limit the amount of debt securities that may be issued thereunder from time to time. The indenture also provides that there may be more than one trustee thereunder, with respect to one or more different series of indenture securities. See "—Resignation of Trustee," below. At a time when two or more trustees are acting under the indenture, each with respect to only certain series, the term "indenture securities" means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there is more than one trustee under the indenture, the powers and trust obligations of each trustee described in this prospectus will extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under the indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
        We have the ability to issue indenture securities with terms different from those of indenture securities previously issued and, without the consent of the holders thereof, to reopen a previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening was restricted when that series was created.
 Methods of Calculating and Paying Interest on our Debt Securities
        Each series of our debt securities will bear interest at a fixed or variable rate per annum shown on the front cover of the prospectus supplement under which that series is issued.
 Provisions Relating Only to the Senior Debt Securities
        The senior debt securities will rank equally in right of payment with all of our other senior and unsubordinated debt and senior in right of payment to any of our subordinated debt, including the subordinated debt securities. The senior debt securities will be effectively subordinated to all of our secured debt and to all debt, including trade debt, of our subsidiaries, except as to subsidiaries that guarantee the debt. We will disclose the amount of our secured debt in the prospectus supplement.
 Provisions Relating Only to the Subordinated Debt Securities
        The subordinated debt securities will rank junior in right of payment to all of our senior indebtedness. Senior indebtedness will be defined to include all notes or other evidences of debt not expressed to be subordinate or junior in right of payment to any of our other debt. The debt will be structurally subordinated to all debt, including trade debt, of our subsidiaries, except as to subsidiaries that guarantee the debt.
        If the offered securities are subordinated debt securities, the supplemental indenture may provide that no cash payment of principal, interest and any premium on the subordinated debt securities may be made:
•
if we fail to pay when due any amounts on any senior indebtedness;
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•
if our property is, or we are, involved in any voluntary or involuntary liquidation or bankruptcy; and 

•
in other instances specified in the supplemental indenture.
 Conversion or Exchange Rights
        If any series of our debt securities are convertible or exchangeable, the applicable prospectus supplement will specify:
•
the type of securities into which it may be converted or exchanged; 

•
the conversion price or exchange ratio, or its method of calculation; and 

•
how the conversion price or exchange ratio may be adjusted if our debt securities are redeemed.
 Events of Default
        Unless otherwise specified in the applicable prospectus supplement, the following will be events of default with respect to any series of debt securities or guarantees:
•
default for 30 days in the payment when due of interest on the debt securities; 

•
default in payment when due of the principal of or any premium on the debt securities; 

•
default in the performance or breach of various covenants after applicable notice and/or grace period; and 

•
various events of bankruptcy or insolvency with respect to us.
        The applicable prospectus supplement will describe any additional events of default.
        If an event of default occurs with respect to debt securities of a series then outstanding and is continuing, then the trustee or the holders of not less than 25% in principal amount of the debt securities of that series then outstanding, by a notice in writing to Boot Barn (and to the trustee if given by the holders), may declare the principal amount (or, if the debt securities of that series are original issue discount securities, such portion of the principal amount as may be specified in the terms of that series) of, premium, if any, and accrued interest on all of the debt securities of that series to be due and payable immediately, and the same (or specified portion thereof) shall become immediately due and payable. A declaration of default under the indenture or under other payment obligations could give rise to cross-defaults and acceleration with respect to the debt securities or such other payment obligations.
        At any time after a declaration of acceleration with respect to debt securities of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the trustee as provided in the indenture, the holders of a majority in principal amount of the debt securities of that series (or of all series, as the case may be) then outstanding, by written notice to Boot Barn and the trustee, may rescind such declaration and its consequences under the circumstances specified in the indenture.
        The indenture will provide that no such rescission shall affect any subsequent default or impair any right consequent thereon.
        With respect to the debt securities of any series, the holders of not less than a majority in principal amount of the debt securities of such series then outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, provided that:
•
such direction shall not be in conflict with any rule of law or with the indenture;
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•
the trustee may take any other action deemed proper by the trustee which is not inconsistent with such direction; and 

•
the trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the holders of debt securities of such series (it being understood that the trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such holders) not directing.
        No holder of any debt security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to the indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
•
the holder has previously given written notice to the trustee of a continuing event of default with respect to the debt securities of that series; 

•
the holders of not less than 25% in principal amount of the debt securities of that series then outstanding shall have made written request to the trustee to institute proceedings in respect of the event of default in its own name as trustee under the indenture; 

•
such holder or holders have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities to be incurred in compliance with such request; 

•
the trustee for 60 days after its receipt of such notice, request and offer of security or indemnity, has failed to institute any such proceeding; and 

•
no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority or more in principal amount of the debt securities of that series then outstanding.
        However, no holder of a debt security has the right under the indenture to affect, disturb or prejudice the rights of any other holders of debt securities of the same series, or to obtain or to seek to obtain priority or preference over any other of such holders or to enforce any right under the indenture, except in the manner provided in the indenture and for the equal and ratable benefit of all holders of debt securities of the same series.
        Every year we will be required to deliver to the trustee a certificate as to our performance of our obligations under the indenture and as to any defaults.
 Mergers, Consolidations and Certain Sale of Assets
        Unless otherwise specified in the applicable prospectus supplement, the indenture will provide that we may not:
•
consolidate with or merge into any other person or entity or permit any other person or entity to consolidate with or merge into us in a transaction in which we are not the surviving entity, or 

•
transfer, lease or dispose of all or substantially all of our assets to any other person or entity unless: 

•
the resulting, surviving or transferee entity shall be a corporation organized and existing under the laws of the United States or any state thereof and such resulting, surviving or transferee entity shall expressly assume, by supplemental indenture, executed and delivered in form satisfactory to the trustee, all of our obligations under the debt securities and the indenture; 

•
immediately after giving effect to such transaction (and treating any indebtedness which becomes an obligation of the resulting, surviving or transferee entity as a result of such transaction as having been incurred by such entity at the time of such transaction), no default or event of default would occur or be continuing; and
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•
we shall have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the indenture.
 Modification and Waiver
        Unless otherwise specified in the applicable prospectus supplement, the indenture will provide that Boot Barn and the trustee may amend or supplement the indenture or the debt securities without notice to or the consent of any holder for clarification, corrections, and legal compliance purposes, including as follows:
•
to cure any ambiguity, defect or inconsistency; 

•
to provide for uncertificated debt securities in addition to or in place of certificated debt securities; 

•
to make any change that does not adversely affect the interests thereunder of any holder; 

•
to qualify the indenture under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act, or to comply with the requirements of the SEC in order to maintain the qualification of the indenture under the Trust Indenture Act; 

•
to evidence the succession of another person to Boot Barn and that person's assumption of Boot Barn's covenants and obligations under the indenture; 

•
to add to Boot Barn's covenants; 

•
to add a guarantor; provided any such supplemental indenture may be signed by Boot Barn, the guarantor providing the guarantee, and the trustee; 

•
to add any additional events of default; 

•
to secure the debt securities; 

•
to establish the form or terms of debt securities; 

•
to evidence the appointment of a successor trustee under the indenture; 

•
to close the indenture with respect to authentication and delivery of additional series of debt securities; or 

•
to supplement the indenture in order to permit the defeasance and discharge of any series of debt securities.
        The indenture will provide that Boot Barn and the trustee may make modifications and amendments to the indenture, and waive past defaults, with the consent of the holders of not less than a majority in aggregate principal amount at maturity of the outstanding debt securities in a series; provided, however, that no such modification or amendment may, without the consent of each holder affected thereby:
•
change the stated maturity of the principal of, or any installment of interest on, any debt security; 

•
reduce the principal amount of, or premium, if any, or interest on, any debt security; 

•
reduce the amount of a debt security's principal that would be due and payable upon a declaration of acceleration, following a default: 

•
change the place of payment of, the currency of payment of principal of, or premium, if any, or interest on, any debt security; 

•
adversely affect any right to convert or exchange any debt security that is convertible or exchangeable; or
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•
reduce or postpone any sinking fund or similar provision; or 

•
reduce the stated percentage of outstanding debt securities the consent of whose holders is necessary to modify, or amend the indenture or waive a past default.
 Governing Law; Jury Trial Waiver
        Any issued debt securities and the indenture will be governed by the laws of the state of New York. The indenture provides that Boot Barn, the guarantors and the trustee, and each holder of a debt security by its acceptance thereof, irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture or the debt securities.
 Concerning the Trustee
        The indenture will provide that Wells Fargo Bank, National Association will be the trustee under the indenture for any debt securities issued pursuant hereto, unless another trustee is appointed with respect to a particular series.
        The indenture will provide that, except during the continuance of an event of default or default, the trustee will not be liable, except for the performance of such duties as are specifically set forth in such indenture. If an event of default has occurred and is continuing, the trustee will use the same degree of care and skill in its exercise of the rights and powers vested in it by the indenture as a prudent person would exercise under the circumstances in the conduct of such person's own affairs.
        The indenture and provisions of the Trust Indenture Act incorporated by reference in the indenture contain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions; provided, however, that if it acquires any conflicting interest as defined in the Trust Indenture Act, it must eliminate such conflict, apply to the Commission for permission to continue, or resign. The trustee assumes no responsibility for the accuracy or completeness of the information concerning us or our affiliates or any other party contained in this document or the related documents or for any failure by us or any other party to disclose events that may have occurred and may affect the significance or accuracy of such information.
 Defeasance
        The following provisions will be applicable to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance and full defeasance will not be applicable to that series.
        The indenture will provide that we will be deemed to have paid and will be discharged from any and all obligations in respect of any issued series of debt securities and the provisions of the indenture or will be released from our obligations to comply with covenants relating to those debt securities as described above or in the applicable prospectus supplement, (which may include obligations concerning subordination of our subordinated debt securities) if, among other things:
•
we have irrevocably deposited with the trustee, in trust, money and/or U.S. Government Obligations (as defined in the indenture) that through the payment of interest and principal in respect of those monies and/or U.S. Government Obligations in accordance with their terms, will provide money in an amount sufficient (in the opinion of a nationally recognized firm of independent public accountants delivered in writing to the trustee if U.S. Government Obligations are deposited) to pay the principal of, premium, if any, and interest, if any, on the series of debt securities on the stated maturity of such payments and any applicable sinking fund or analogous payments in accordance with the terms of the indenture and the debt securities;
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•
such defeasance shall not result in a breach, or constitute a default, under the indenture or any other material agreement of Boot Barn; 

•
we have delivered to the trustee either (i) an opinion of counsel to the effect that holders will not recognize additional income, gain or loss for U.S. federal income tax purposes as a result of Boot Barn's exercise of the defeasance or covenant defeasance, or (ii) a ruling directed to the trustee received from the Internal Revenue Service to the same effect as the aforementioned opinion of counsel; and 

•
Boot Barn has delivered to the trustee an officers' certificate and an opinion of counsel, each stating that all the conditions precedent to full defeasance have been complied with.
        In the event we exercise our option to omit compliance with certain covenants and provisions of the indenture with respect to a series of debt securities and the debt securities are declared due and payable because of the occurrence of an event of default that remains applicable, the amount of money and/or U.S. Government Obligations on deposit with the trustee will be sufficient to pay amounts due on the debt securities at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities at the time of the acceleration resulting from such event of default, however, we will remain liable for such payments.
        We cannot defease our obligations to register the transfer or exchange of our debt securities; to replace our debt securities that have been stolen, lost or mutilated; to maintain paying agencies; or to hold funds for payment in trust. We may not defease our obligations if there is a continuing event of default on securities issued under the applicable indenture, or if depositing amounts into trust would cause the trustee to have conflicting interests with respect to other of our securities.
 Resignation of Trustee
        The trustee may resign or be removed with respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to these series. In the event that two or more persons are acting as trustee with respect to different series of indenture securities under one of the indentures, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
 Guarantees
        The debt securities of any series that we issue may be guaranteed by one or more of our direct or indirect subsidiaries. However, the indentures governing our guaranteed debt securities will not require that any of our subsidiaries be a guarantor of any series of guaranteed debt securities. As a result, the guarantors of any series of our guaranteed debt securities may differ from the guarantors of any other series of guaranteed debt securities. In the event we issue a series of guaranteed debt securities, the specific guarantors of the debt securities of that series will be identified in the applicable prospectus supplement.
        If we issue a series of guaranteed debt securities, a description of some of the terms of the guarantees of those debt securities will be set forth in the applicable prospectus supplement, including any limitations that may be applicable to the guarantee due to other debt arrangements or otherwise. Unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, each guarantor of the debt securities of such series will unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest, if any, on and any other amounts payable with respect to, each debt security of such series and the due and punctual performance of all of our other obligations under the applicable indenture with respect to the debt securities of such series, all in accordance with the terms of such debt securities and the applicable indenture.
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        Notwithstanding the foregoing, unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, the applicable indenture will contain provisions to the effect that the obligations of each guarantor under its guarantees and such indenture shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such guarantor, result in the obligations of such guarantor under such guarantees and such indenture not constituting a fraudulent conveyance or fraudulent transfer under applicable law. However, there can be no assurance that, notwithstanding such limitation, a court would not determine that a guarantee constituted a fraudulent conveyance or fraudulent transfer under applicable law. If that were to occur, the court could void the applicable guarantor's obligations under that guarantee, subordinate that guarantee to other debt and other liabilities of that guarantor or take other action detrimental to holders of the debt securities of the applicable series, including directing the holders to return any payments received from the applicable guarantor.
        The applicable prospectus supplement relating to any series of guaranteed debt securities will specify other terms of the applicable guarantees, which may include provisions that allow a guarantor to be released from its obligations under its guarantee under specified circumstances or that provide for one or more guarantees to be secured by specified collateral.
        Unless otherwise expressly stated in the applicable prospectus supplement, each guarantee will be the unsubordinated and unsecured obligation of the applicable guarantor and will rank on a parity in right of payment with all other unsecured and unsubordinated indebtedness and guarantees of such guarantor. Each guarantee (other than a secured guarantee) will be effectively subordinated to all existing and future secured indebtedness and secured guarantees of the applicable guarantor to the extent of the value of the collateral securing that indebtedness and those guarantees. Consequently, in the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to any guarantor that has provided an unsecured guarantee of any debt securities, the holders of that guarantor's secured indebtedness and secured guarantees will be entitled to proceed directly against the collateral that secures that secured indebtedness or those secured guarantees, as the case may be, and such collateral will not be available for satisfaction of any amount owed by such guarantor under its unsecured indebtedness and unsecured guarantees, including its unsecured guarantees of any debt securities, until that secured debt and those secured guarantees are satisfied in full. Unless otherwise provided in the applicable prospectus supplement, the indentures will not limit the ability of any guarantor to incur secured indebtedness or issue secured guarantees.
        Unless otherwise expressly stated in the applicable prospectus supplement, each secured guarantee will be an unsubordinated obligation of the applicable guarantor and will rank on a parity in right of payment with all other unsecured and unsubordinated indebtedness and guarantees of such guarantor, except that such secured guarantee will effectively rank senior to such guarantor's unsecured and unsubordinated indebtedness and guarantees in respect of claims against the collateral securing that secured guarantee.
 Global Securities
        We may issue debt securities as registered securities in book-entry form only. A global security represents one or any other number of individual debt securities. All debt securities represented by the same global security have the same terms.
        Each debt security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depository. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depository for all debt securities issued in book-entry form. So long as DTC or its nominee is
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the registered owner of a global security, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the global security for all purposes under the indenture.
        A global security may not be transferred to or registered in the name of anyone other than the depository or its nominee, unless special termination situations arise. As a result of these arrangements, the depository, or its nominee, will be the sole registered owner and holder of all debt securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depository or with another institution that has an account with the depository. Thus, an investor whose security is represented by a global security will not be a holder of the debt security, but only an indirect holder of a beneficial interest in the global security.
        As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of the investor's financial institution and of the depository, as well as general laws relating to securities transfers. The depository that holds the global security will be considered the holder of the debt securities represented by the global security.
        If debt securities are issued only in the form of a global security, an investor should be aware of the following:
•
an investor cannot cause the debt securities to be registered in his or her name, and cannot obtain certificates for his or her interest in the debt securities, except in the special situations we describe below; 

•
an investor will be an indirect holder and must look to his or her own bank or broker for payments on the debt securities and protection of his or her legal rights relating to the debt securities; 

•
an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the debt securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; 

•
the depository's policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor's interest in a global security. We and the trustee have no responsibility for any aspect of the depository's actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depository in any way; 

•
DTC requires that those who purchase and sell interests in a global security deposited in its book-entry system use immediately available funds. Your broker or bank may also require you to use immediately available funds when purchasing or selling interests in a global security; and 

•
financial institutions that participate in the depository's book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the debt security. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
        Generally, a global security will be terminated and interests in it will be exchanged for certificates in non-global form, referred to as certificated securities only in the following instances:
•
if the depository notifies us and the trustee that it is unwilling or unable to continue as depository for that global security; 

•
if the depository ceases to be a clearing agency and we do not appoint another institution to act as depository within 90 days; 

•
if we determine that we wish to terminate that global security; or
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•
if an event of default has occurred with regard to the debt securities represented by that global security and has not been cured or waived, and the owner of beneficial interests in the global security requests that certificated securities be delivered; we discuss defaults above under "Events of Default."
        The prospectus supplement may list situations for terminating a global security that would apply only to the particular series of debt securities covered by the prospectus supplement. If a global security is terminated, only the depository, and not we or the applicable trustee, is responsible for deciding the names of the institutions in whose names the debt securities represented by the global security will be registered and, therefore, who will be the holders of those debt securities. In connection with any proposed exchange of a certificated security for a global security, Boot Barn or DTC shall be required to provide or cause to be provided to the trustee all information necessary to allow the trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
 Payment and Paying Agent
        Unless specified otherwise in a prospectus supplement, in the event certificated registered debt securities are issued, the holders of certificated registered debt securities will be able to receive payments of principal and of interest on their debt securities at the office of the paying agent. All payments of interest may be received at the offices of such paying agent upon presentation of certificated debt securities and all payments of principal may be received at such offices upon surrender of the debt securities. We also have the option of mailing checks or making wire transfers to the registered holders of the debt securities. Unless specified otherwise in a prospectus supplement, we will maintain a paying agent for the debt securities in the continental United Stated at all times that payments are to be made in respect of the debt securities and, if and so long as the debt securities remain outstanding. The transferor of any security shall provide or cause to be provided to the trustee all information necessary to allow the trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.

 Description of Depository Shares
        We may issue fractional shares of preferred stock, rather than full shares of preferred stock. If we do so, we may issue receipts for depository shares that each represent a fraction of a share of a particular series of preferred stock. A related prospectus supplement will indicate that fraction. The shares of preferred stock represented by depository shares will be deposited under a depository agreement between us and a bank or trust company that is selected by us, which we refer to as the "bank depository." Each owner of a depository share will be entitled to all the right, preferences and privileges of the preferred stock represented by the depository share. The depository share will be evidenced by depository receipts issued pursuant to the depository agreement. Depository receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering.
        The forms of the depository agreement and the depository receipts relating to any particular issue of depository shares will be filed with the SEC each time we issue depository shares, and any prospectus supplement relating to any particular depository shares will describe, among other things, the following:
•
the material terms of the depository shares and of the underlying preferred stock; 

•
the identity of the bank depository and the material terms of the depository agreement; 

•
any material provisions relating to the issuance, payment, settlement, transfer or exchange of the depository shares; and
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•
any applicable material United States federal income tax considerations.

 Selling Stockholders
        Information about selling stockholders, if any, including their identities and the common stock to be registered on their behalf, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act that are incorporated by reference into this prospectus.
        All of the common stock currently held by the selling stockholders was issued and outstanding as of the date of the filing of the registration statement of which this prospectus is a part. Selling stockholders shall not sell any of our common stock pursuant to this prospectus until we have identified such selling stockholders, any relationship any selling stockholder has had with us in the three years prior to any such sale, the total number of shares held by each selling stockholder before and after the sale and the number of shares of common stock being offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their common stock pursuant to any available exemption from the registration requirements of the Securities Act.

 Plan of Distribution
        We and/or selling stockholders may sell the securities in and outside the United States through underwriters or dealers, directly to purchasers, including our affiliates, through agents, or through a combination of any of these methods. The prospectus supplement will include the following information:
•
the terms of the offering; 

•
the names of any underwriters, dealers or agents; 

•
the name or names of any managing underwriter or underwriters; 

•
the purchase price of the securities; 

•
the net proceeds from the sale of the securities; 

•
any delayed delivery arrangements; 

•
any underwriting discounts, commissions and other items constituting underwriters' compensation; 

•
any public offering price; 

•
any discounts or concessions allowed or reallowed or paid to dealers; 

•
any commissions paid to agents; 

•
the terms of any arrangement entered into with any dealer or agent; and 

•
any information about selling stockholders, if applicable.
 Sale Through Underwriters or Dealers
        If underwriters are used in the sale of any of these securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in any prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change
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from time to time any public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
        During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
        Some or all of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell these securities for public offering and sale may make a market in those securities, but they will not be obligated to and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
        If dealers are used in the sale of securities, we will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
 Direct Sales and Sales Through Agents
        We and/or selling stockholders may sell the securities directly, and not through underwriters or agents. Securities may also be sold through agents designated from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
        We and/or selling stockholders may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act, as amended, or the Securities Act, with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
 Delayed Delivery Contracts
        If we so indicate in the prospectus supplement, we and/or selling stockholders may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities from us or selling stockholders, if applicable, at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
 Hedging Transactions
        In connection with distributions of the securities pursuant hereto, selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short sales of the common stock in the course of hedging the positions they assume with selling stockholders. Selling stockholders may also sell common stock short and redeliver the shares to close out such short positions. Selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus,
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which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Selling stockholders may also pledge shares to a broker-dealer or other financial institution, and, upon a default, such broker-dealer or other financial institution, may effect sales of the pledged shares pursuant to this prospectus (as supplemented or amended to reflect such transaction).
 General Information
        We and/or selling stockholders may have agreements with the agents, dealers and underwriters to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers and underwriters may be customers of, engage in transactions with or perform services for, us or selling stockholders in the ordinary course of their businesses.

 Legal Matters
        The validity of the securities offered hereby has been passed upon for us by Morgan, Lewis & Bockius LLP, New York, New York. The validity of the guarantees of Sheplers, Inc. have been passed upon for us by Biggs Paul LLC with respect to matters of Kansas law. The validity of the guarantees of RCC Western Stores, Inc. have been passed upon for us by Gunderson, Palmer, Nelson & Ashmore, LLP with respect to matters of South Dakota law. Certain partners of Morgan, Lewis & Bockius LLP are limited partners in a partnership that is a limited partner of the Freeman Spogli & Co. investment fund that owns equity interests of us.

 Experts
        The consolidated financial statements incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended April 1, 2017, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

 Where You Can Find More Information
        We have filed with the SEC a registration statement on Form S-3 (including exhibits, schedules and amendments) under the Securities Act with respect to the securities offered pursuant hereto. This prospectus does not contain all the information set forth in the registration statement. For further information about us and the securities to be sold pursuant hereto, you should refer to the registration statement. Statements contained in this prospectus relating to the contents of any contract, agreement or other document are not necessarily complete, and, in each instance, we encourage you to read in its entirety the copy of the contract, agreement or other document filed as an exhibit to the registration statement. Whenever this prospectus refers to any contract, agreement or other document, you should refer to the exhibits that are a part of the registration statement for a copy of the contract, agreement or document.
        You may read and copy all or any portion of the registration statement or any other information we file at the SEC's public reference room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You can request copies of these documents, upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information about the operation of the public reference rooms. Our SEC filings, including the registration statement, are also available to you on the SEC's website (http://www.sec.gov).
        We are subject to the information and periodic reporting requirements of the Exchange Act. Under the Exchange Act, we file annual, quarterly and current reports, as well as proxy statements and other
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information with the SEC. These periodic reports, proxy statements and other information are available for inspection and copying at the SEC's public reference room and the website of the SEC referred to above. We also maintain a website at www.bootbarn.com. You may access our periodic reports, proxy statements and other information free of charge at our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. Except as expressly stated herein, the information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our securities. See "Incorporation of Documents by Reference."

 Incorporation of Certain Documents by Reference
        The SEC allows us to incorporate into this prospectus information we file with the SEC in other documents. The information incorporated by reference is considered to be part of this prospectus and information we later file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, as amended, until all of the securities that are part of this offering have been sold. The documents we have incorporated by reference are:
•
our Annual Report on Form 10-K for the fiscal year ended April 1, 2017, as filed with the SEC on June 7, 2017; 

•
our Definitive Proxy Statement on Schedule 14A, as filed with the SEC on July 20, 2017; 

•
our Quarterly Report on Form 10-Q, for the fiscal quarter ended September 30, 2017, as filed with the SEC on November 6, 2017 

•
our Quarterly Report on Form 10-Q, for the fiscal quarter ended July 1, 2017, as filed with the SEC on August 2, 2017; 

•
our Current Report on Form 8-K, as filed with the SEC on August 31, 2017; 

•
our Current Report on Form 8-K, as filed with the SEC on June 1, 2017 (except as otherwise provided therein); 

•
the description of our common stock contained in our Registration Statement on Form 8-A, as filed with the SEC on October 28, 2014, including any amendment or report filed for the purpose of updating such description; and 

•
all documents filed by us with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (Commission File Number 001-36711) after (i) the date of this registration statement and prior to its effectiveness and (ii) the date of this prospectus and before the completion of the offering contemplated hereby.
        Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed modified, superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus modifies, supersedes or replaces such statement.
        You may request, orally or in writing, a copy of any or all of the documents incorporated by reference herein. These documents will be provided to you at no cost, by contacting us at 15345 Barranca Parkway, Irvine, California, 92618, (949) 453-4400. In addition, copies of any or all of the documents incorporated by reference herein may be accessed at our website at www.investor.bootbarn.com. Other than the documents specifically set forth above, the information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our securities.
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        We have authorized anyone to provide any information or to make any representations other than those contained or incorporated by reference in this prospectus or in any free writing prospectuses we have prepared. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you.
        You should read the information in this prospectus together with the information in the documents incorporated by reference.
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$300,000,000

Boot Barn Holdings, Inc.
Common stock
Preferred Stock
Warrants
Debt Securities
Depository Shares

Prospectus

The date of this prospectus is                  , 2017

Table of Contents

 PART II

Information Not Required In Prospectus
Item 14.    Other Expenses Of Issuance And Distribution
        The following table sets forth the fees and expenses (other than the underwriting discount) payable by us in connection with the sale of the securities being registered.

 	 	Amount	 	
SEC registration fee	 	 $	37,350	 	
Printing and engraving expenses	 	 	 	*	
Legal fees and expenses	 	 	 	*	
Accounting fees and expenses	 	 	 	*	
Transfer agent and registrar fees and expenses	 	 	 	*	
Miscellaneous	 	 	 	*	
Total	 	 $	 	*	

*
Estimated fees and expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate that we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement.
Item 15.    Indemnification of directors and officers.
 Boot Barn Holdings, Inc.
        As permitted by Section 102 of the Delaware General Corporation Law, or DGCL, Boot Barn's amended and restated certificate of incorporation provides that, to the fullest extent permitted by Delaware law, no director will be personally liable to Boot Barn or Boot Barn's stockholders for monetary damages for breach of fiduciary duty as a director. Pursuant to Delaware law such protection would be unavailable for liability:
•
for any breach of a duty of loyalty to Boot Barn or Boot Barn's stockholders; 

•
for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; 

•
for an act or omission for which the liability of a director is expressly provided by an applicable statute, including unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or 

•
for any transaction from which the director derived an improper benefit.
        Boot Barn's amended and restated certificate of incorporation also provides that if Delaware law is amended after the approval by Boot Barn's stockholders of the amended and restated certificate of incorporation to authorize corporate action further limiting or eliminating the personal liability of directors, then the liability of Boot Barn's directors will be limited or eliminated to the fullest extent permitted by Delaware law.
        Section 145 of the DGCL authorizes a corporation's board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents. Boot Barn's amended and restated bylaws further provide that Boot Barn must indemnify Boot Barn's directors and officers to the fullest extent permitted by Delaware law. The amended and restated bylaws also authorize Boot Barn to
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indemnify any of Boot Barn's employees or agents and permit Boot Barn to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether or not Delaware law would otherwise permit indemnification.
        In addition, Boot Barn's amended and restated bylaws provide that Boot Barn is required to advance expenses to Boot Barn's directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified and that the rights conferred in the amended and restated bylaws are not exclusive.
        Boot Barn has entered into indemnification agreements with each of Boot Barn's directors and executive officers. These agreements, among other things, require Boot Barn to indemnify and advance expenses to each director and executive officer to the fullest extent permitted by Delaware law, the amended and restated certificate of incorporation and amended and restated bylaws, for expenses such as, among other things, attorneys' fees, judgments, fines, and settlement amounts incurred by the director or executive officer in any action or proceeding, including any action by or in Boot Barn's right, arising out of the person's services as Boot Barn's director or executive officer or as the director or executive officer of any subsidiary of Boot Barn or any other company or enterprise to which the person provides services at Boot Barn's request. Boot Barn also maintain directors' and officers' liability insurance.
        The SEC has taken the position that personal liability of directors for violation of the federal securities laws cannot be limited and that indemnification by Boot Barn for any such violation is unenforceable. The limitation of liability and indemnification provisions in Boot Barn's amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against Boot Barn's directors and officers for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against Boot Barn's directors and officers, even though an action, if successful, might benefit Boot Barn and other stockholders. Further, a stockholder's investment may be adversely affected to the extent that Boot Barn pays the costs of settlement and damage awards against directors and officers as required by these indemnification provisions.
 Baskins Acquisition Holdings, LLC
        Section 18-108 of the Delaware Limited Liability Company Act provides that subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. This registrant's operating agreement provides that it is required to advance expenses to its members or directors as incurred in connection with legal proceedings against them for which they may be indemnified and that the rights conferred in the operating agreement are not exclusive. This registrant's operating agreement also authorizes the registrant to indemnify any of its employees or agents and permits the registrant to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity.
 Boot Barn, Inc.
        As permitted by Section 102 of the DGCL, this registrant's certificate of incorporation provides that, to the fullest extent permitted by Delaware law, no director will be personally liable to this registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Pursuant to Delaware law such protection would be unavailable for liability:
•
for any breach of a duty of loyalty to this registrant or its stockholders; 

•
for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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•
for an act or omission for which the liability of a director is expressly provided by an applicable statute, including unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or 

•
for any transaction from which the director derived an improper benefit.
        This registrant's certificate of incorporation also provides that if Delaware law is amended after the approval by its stockholders of the certificate of incorporation to authorize corporate action further limiting or eliminating the personal liability of directors, then the liability of this registrant's directors will be limited or eliminated to the fullest extent permitted by Delaware law.
        This registrant's certificate of incorporation further provides that, to the fullest extent permitted by Section 145 of the DGCL, as it may be amended from time to time, this registrant must indemnify any and all persons whom it has the power to indemnify from and against any and all of the expenses, liabilities or other matters referred to in or covered by Section 145 of the DGCL and any such indemnification will not be deemed exclusive of any other rights to which an indemnified person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors etc. and applies in both official and nonofficial capacities and continues to apply even if such person is no longer affiliated with this registrant.
        In addition, this registrant's amended bylaws provide that it may advance expenses to its directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified and that the rights conferred in the amended and restated bylaws are not exclusive.
 RCC Western Stores, Inc.
        Section 47-1A-851 of the South Dakota Business Corporation Act, or SDBCA, provides that a corporation may indemnify a director who is a party to a proceeding by reason of being a director, against liability incurred in the proceeding if the director:
(1)
Acted in good faith; and

(2)
Reasonably believed:

(a)
In the case of conduct in an official capacity, that the conduct was in the best interests of the corporation; and

(b)
In all other cases, that the conduct was at least not opposed to the best interests of the corporation; and

(3)
In the case of any criminal proceeding, had no reasonable cause to believe the conduct was unlawful.
        A corporation may also, except as provided in Section 47-1A-851.1 of the SDBCA, indemnify a director who is a party to a proceeding against liability incurred in the proceeding if the director engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation, as authorized by subdivision 47-1A-202.1(5) of the SDBCA.
        A director's conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in, and the beneficiaries of, the plan is conduct that satisfies the requirement of subsection (2)(b) above.
        The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, is not, of itself, determinative that the director did not meet the relevant standard of conduct described in Section 47-1A-851 of the SDBCA.
        However, a corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct under Section 47-1A-851 of the
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SDBCA; or in connection with any proceeding with respect to conduct for which the director was adjudged liable on the basis that the director received a financial benefit to which the director was not entitled, whether or not involving action in the director's official capacity.
        The SDBCA further provides for the advancement of expenses incurred by a director who is a party to a proceeding by reasons of being a director and that a corporation may purchase and maintain insurance on behalf of an individual who is a director or officer of the corporation.
        This registrant's amended bylaws provide that the registrant may, insofar as permitted by law, indemnify directors, officers, including former directors and officers, or any person who may have served at the registrant's request as a director or officer of another corporation in which the registrant owns shares or capital stock, or of which it is a creditor, against any liabilities in connection with being a director or officer of the registrant. The registrant's amended bylaws further provide that the rights conferred in its amended bylaws are not exclusive.
 Sheplers Holding Corporation
        As permitted by Section 102 of the DGCL, this registrant's amended and restated certificate of incorporation provides that, to the fullest extent permitted by Delaware law, no director will be personally liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Pursuant to Delaware law such protection would be unavailable for liability:
•
for any breach of a duty of loyalty to the registrant or its stockholders; 

•
for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; 

•
for an act or omission for which the liability of a director is expressly provided by an applicable statute, including unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or 

•
for any transaction from which the director derived an improper benefit.
        Section 145 of the DGCL authorizes a corporation's board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents. This registrant's amended and restated bylaws further provide that the registrant must indemnify its directors and officers to the fullest extent permitted by Delaware law. The amended and restated bylaws also authorize the registrant to indemnify any of its employees or agents and permit the registrant to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether or not Delaware law would otherwise permit indemnification.
        In addition, this registrant's amended and restated bylaws provide that the registrant is required to advance expenses to its directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified and that the rights conferred in the amended and restated bylaws are not exclusive.
 Sheplers, Inc.
        The amended and restated articles of incorporation of this registrant provide that it will indemnify its directors, officer, employees or agents and all other persons as provided in and to the full extent allowed by Section 17-6305 of the Kansas General Corporation Code in effect or as it may be amended.
        This registrant's amended and restated bylaws provide that the registrant must indemnify its directors and officers to the fullest extent permitted by Kansas law. The amended and restated bylaws also authorize the registrant to indemnify any of its employees or agents and permit the registrant to secure insurance on
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behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether or not Delaware law would otherwise permit indemnification.
        In addition, this registrant's amended and restated bylaws further provide that the registrant is required to advance expenses to its directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified and that the rights conferred in the amended and restated bylaws are not exclusive.
Item 16.    Exhibits.

Exhibit
Number	 	Description	
 	1.1	 	Form of Underwriting Agreement*	

2.1	
 	
Merger Agreement, dated May 29, 2015, by and among Boot Barn, Inc., Rodeo Acquisition Corp., Sheplers Holding Corporation and Gryphon Partners III, L.P.(1)	

3.1	
 	
Second Amended and Restated Certificate of Incorporation of Boot Barn Holdings, Inc.(2)	

3.2	
 	
Amended and Restated By-Laws of Boot Barn Holdings, Inc.(2)	

3.3	
 	
Certificate of Formation of Baskins Acquisition Holdings, LLC**	

3.4	
 	
Operating Agreement of Baskins Acquisition Holdings, LLC**	

3.5	
 	
Certificate of Incorporation of Boot Barn, Inc.**	

3.6	
 	
Amended By-Laws of Boot Barn, Inc.**	

3.7	
 	
Restated Articles of Incorporation of RCC Western Stores, Inc.**	

3.8	
 	
Amended By-Laws of RCC Western Stores, Inc.**	

3.9	
 	
Third Amended and Restated Certificate of Incorporation of Sheplers Holding Corporation**	

3.10	
 	
Amended and Restated By-Laws of Sheplers Holding Corporation**	

3.11	
 	
Amended and Restated Articles of Incorporation of Sheplers, Inc.**	

3.12	
 	
Amended and Restated By-Laws of Sheplers, Inc.**	

4.1	
 	
Specimen common stock certificate(2)	

4.2	
 	
Form of Senior or Subordinated Indenture**	

4.3	
 	
Form of Senior Debt Security*	

4.4	
 	
Form of Subordinated Debt Security*	

4.5	
 	
Form of Certificate of Designation of Preferred Stock*	

4.6	
 	
Form of Certificate for Preferred Stock*	

4.7	
 	
Form of Warrant*	

4.8	
 	
Form of Warrant Agreement*	

4.9	
 	
Form of Depository Agreement*	

4.10	
 	
Form of Depository Receipt*	

5.1	
 	
Opinion of Morgan, Lewis & Bockius LLP**	

5.2	
 	
Opinion of Biggs Paul LLC**	
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Exhibit
Number	 	Description	
 	5.3	 	Opinion of Gunderson, Palmer, Nelson & Ashmore, LLP**	

12.1	
 	
Computation of Ratio/Deficiency of Earnings to Fixed Charges*	

23.1	
 	
Consent of Deloitte & Touche LLP**	

23.2	
 	
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1)**	

23.3	
 	
Consent of Biggs Paul LLC (included in Exhibit 5.2)**	

23.4	
 	
Consent of Gunderson, Palmer, Nelson & Ashmore, LLP (included in Exhibit 5.3)**	

24	
 	
Power of Attorney (included on the signature pages to the Registration Statement)	

25.1	
 	
Form T-1 Statement of Eligibility of Trustee for Senior or Subordinated Indenture under the Trust Indenture Act of 1939**	

*
To be filed with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement.

**
Filed herewith.

(1)
Incorporated by reference to our Current Report on Form 8-K filed on June 3, 2015.

(2)
Incorporated by reference to the same-numbered exhibit to Amendment No. 2 to Form S-1 (File No. 333-199008) filed by the Registrant with the SEC on October 20, 2014.
Item 17.    Undertakings
        (a)   The undersigned Registrants hereby undertake:
        (1)   To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
          (i)  to include any prospectus required by Section 10(a)(3) of the Securities Act;
         (ii)  to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
        (iii)  to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however , that:
Paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by reference in
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the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
        (2)   That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
        (3)   To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
        (4)   That, for the purpose of determining liability under the Securities Act to any purchaser:
          (i)  Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
         (ii)  Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided , however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
        (5)   That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
          (i)  Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
         (ii)  Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
        (iii)  The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
        (iv)  Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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        (6)   That, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
        (b)   Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of a Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act, and will be governed by the final adjudication of such issue.
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 Signatures
        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on November 22, 2017.

 	 	BOOT BARN HOLDINGS, INC.	

 	
By:	
 	
/s/ JAMES G. CONROY

James G. Conroy
 President, Chief Executive Officer and Director	

 POWER OF ATTORNEY
        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James G. Conroy and Gregory V. Hackman as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature 	 	Title 	 	Date 	

 	

 	
/s/ JAMES G. CONROY

James G. Conroy	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	November 22, 2017	

/s/ GREGORY V. HACKMAN

Gregory V. Hackman	
 	
Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer)	
 	
November 22, 2017	

/s/ GREG BETTINELLI

Greg Bettinelli	
 	
Director	
 	
November 22, 2017	

/s/ BRAD J. BRUTOCAO

Brad J. Brutocao	
 	
Director	
 	
November 22, 2017	

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Signature 	 	Title 	 	Date 	

 	

 	
/s/ CHRISTIAN B. JOHNSON

Christian B. Johnson	 	Director	 	November 22, 2017	

/s/ BRENDA I. MORRIS

Brenda I. Morris	
 	
Director	
 	
November 22, 2017	

/s/ J. FREDRICK SIMMONS

J. Fredrick Simmons	
 	
Director	
 	
November 22, 2017	

/s/ PETER STARRETT

Peter Starrett	
 	
Director	
 	
November 22, 2017	

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 Signatures
        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on November 22, 2017.

 	 	BASKINS ACQUISITION HOLDINGS, LLC	

 	
By:	
 	
/s/ JAMES G. CONROY

James G. Conroy
 President and Chief Executive Officer (Principal Executive Officer)	

 POWER OF ATTORNEY
        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James G. Conroy and Gregory V. Hackman as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature 	 	Title 	 	Date 	

 	

 	
/s/ JAMES G. CONROY

James G. Conroy	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	November 22, 2017	

/s/ GREGORY V. HACKMAN

Gregory V. Hackman	
 	
Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer)	
 	
November 22, 2017	

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 Signatures
        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on November 22, 2017.

 	 	BOOT BARN, INC.	

 	
By:	
 	
/s/ JAMES G. CONROY

James G. Conroy
 President and Chief Executive Officer
(Principal Executive Officer)	

  POWER OF ATTORNEY
        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James G. Conroy and Gregory V. Hackman as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature 	 	Title 	 	Date 	

 	

 	
/s/ JAMES G. CONROY

James G. Conroy	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	November 22, 2017	

/s/ GREGORY V. HACKMAN

Gregory V. Hackman	
 	
Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer)	
 	
November 22, 2017	

/s/ GREG BETTINELLI

Greg Bettinelli	
 	
Director	
 	
November 22, 2017	

/s/ BRAD J. BRUTOCAO

Brad J. Brutocao	
 	
Director	
 	
November 22, 2017	

/s/ CHRISTIAN B. JOHNSON

Christian B. Johnson	
 	
Director	
 	
November 22, 2017	

/s/ BRENDA I. MORRIS

Brenda I. Morris	
 	
Director	
 	
November 22, 2017	

/s/ J. FREDRICK SIMMONS

J. Fredrick Simmons	
 	
Director	
 	
November 22, 2017	

/s/ PETER STARRETT

Peter Starrett	
 	
Director	
 	
November 22, 2017	

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 Signatures
        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on November 22, 2017.

 	 	 RCC WESTERN STORES, INC.	

 	
By:	
 	
/s/ JAMES G. CONROY

James G. Conroy
 President and Chief Executive Officer
(Principal Executive Officer)	

 POWER OF ATTORNEY
        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James G. Conroy and Gregory V. Hackman as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature 	 	Title 	 	Date 	

 	

 	
/s/ JAMES G. CONROY

James G. Conroy	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	November 22, 2017	

/s/ GREGORY V. HACKMAN

Gregory V. Hackman	
 	
Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer)	
 	
November 22, 2017	

/s/ GREG BETTINELLI

Greg Bettinelli	
 	
Director	
 	
November 22, 2017	

/s/ BRAD J. BRUTOCAO

Brad J. Brutocao	
 	
Director	
 	
November 22, 2017	

/s/ CHRISTIAN B. JOHNSON

Christian B. Johnson	
 	
Director	
 	
November 22, 2017	

/s/ J. FREDRICK SIMMONS

J. Fredrick Simmons	
 	
Director	
 	
November 22, 2017	

/s/ PETER STARRETT

Peter Starrett	
 	
Director	
 	
November 22, 2017	

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 Signatures
        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on November 22, 2017.

	 	SHEPLERS HOLDING CORPORATION	
	 	By:	 	/s/ JAMES G. CONROY

James G. Conroy
 President and Chief Executive Officer
(Principal Executive Officer)	

 POWER OF ATTORNEY
        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James G. Conroy and Gregory V. Hackman as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature 	 	Title 	 	Date 	

 	

 	
/s/ JAMES G. CONROY

James G. Conroy	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	November 22, 2017	

/s/ GREGORY V. HACKMAN

Gregory V. Hackman	
 	
Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer)	
 	
November 22, 2017	

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 Signatures
        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on November 22, 2017.

	 	SHEPLERS, INC.	
	 	By:	 	/s/ JAMES G. CONROY

James G. Conroy
 President and Chief Executive Officer
(Principal Executive Officer)	

 POWER OF ATTORNEY
        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James G. Conroy and Gregory V. Hackman as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature 	 	Title 	 	Date 	

 	

 	
/s/ JAMES G. CONROY

James G. Conroy	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	November 22, 2017	

/s/ GREGORY V. HACKMAN

Gregory V. Hackman	
 	
Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer)	
 	
November 22, 2017	

Exhibit 3.3
 
Delaware
The First State
 
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “BASKINS ACQUISITION HOLDINGS, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
 
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
 
CERTIFICATE OF FORMATION, FILED THE THIRD DAY OF JUNE, A.D. 2009, AT 12:59 O’CLOCK P.M.
 
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “BASKINS HOLDINGS, LLC” TO “BASKINS ACQUISITION HOLDINGS, LLC”, FILED THE EIGHTH DAY OF JUNE, A.D. 2009, AT 3:40 O’CLOCK P.M.
 
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “BASKINS ACQUISITION HOLDINGS, LLC”.

4694700         8100H
 
090640814
You may verify this certificate online
at corp.delaware.gov/authver.shtml		 	 	
		 	/s/ Jeffrey W. Bullock	
		 	Jeffrey W. Bullock, Secretary of State	
		 	 	 	
		 	AUTHENTICATION:	   7378427	
		 	 	 	
		 	DATE:	   06-23-09	
 
1 

 

 	 	State of Delaware	
 	 	Secretary of State	
 	 	Division of Corporations	
 	 	Delivered 12:59 PM 06/03/2009	
 	 	FILED 12:59 PM 06/03/2009	
 	 	SRV 090583572 - 4694700 FILE	
 
STATE OF DELAWARE
 
CERTIFICATE OF FORMATION
 
OF
 
BASKINS HOLDINGS, LLC
 
First: The name of the limited liability company is Baskins Holdings, LLC.
 
Second: The address of the registered office of the limited liability company in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
 
In Witness Whereof, the undersigned has executed this Certificate of Formation on this 2 nd day of June, 2009.

 	 	BY:	/s/ Kevin R. Burns	
 	 	 	Kevin R. Burns, Authorized Person	

 

 	 	State of Delaware	
 	 	Secretary of State	
 	 	Division of Corporations	
 	 	Delivered 03:40 PM 06/08/2009	
 	 	FILED 03:40 PM 06/08/2009	
 	 	SRV 090597842 - 4694700 FILE	
 
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
 
1.                                       Name of Limited Liability Company: Baskins Holdings, LLC
 
2.                                       The Certificate of Formation of the limited liability company is hereby amended as follows:
 
Article FIRST stating the name of the limited liability company is hereby deleted and replaced with the following:
 
FIRST: The name of the limited liability company is Baskins Acquisition Holdings, LLC.
 
IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 8th day of June, A.D. 2009.

 	 	By:	/s/ Kevin R. Burns	
 	 	 	Authorized Persons	
 	 	 	 	
 	 	Name:	Kevin R. Burns	
 	 	 	Print or Type	

Exhibit 3.4
 
OPERATING AGREEMENT
 
OF
 
BASKINS ACQUISITION HOLDINGS, LLC
 
Dated as of June 2, 2009
 
THE MEMBERSHIP INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY JURISDICTION. NO MEMBERSHIP INTERESTS MAY BE SOLD OR OFFERED FOR SALE (WITHIN THE MEANING OF ANY SECURITIES LAW) UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE SECURITIES LAWS WITH RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. MEMBERSHIP INTERESTS ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE APPLICABLE PROVISIONS OF THIS AGREEMENT ARE SATISFIED.

 
TABLE OF CONTENTS

 	 	Page	
 	 	 	
 	ARTICLE 1	 	
 	DEFINITIONS AND RULES OF CONSTRUCTION	 	
1.1	Definitions	1	
1.2	Other Terms	10	
 	 	 	
 	ARTICLE 2	 	
 	ORGANIZATION	 	
2.1	Organization	10	
2.2	Name	11	
2.3	Principal Office; Registered Office; Registered Agent	11	
2.4	Purposes	11	
2.5	Duration	11	
2.6	No State Law Partnership	11	
 	 	 	
 	ARTICLE 3	 	
 	MEMBERS AND CAPITAL CONTRIBUTIONS	 	
3.1	Membership Interests	12	
3.2	Initial Capital Contributions; Units of Class A and B Membership Interests	12	
3.3	Additional Capital Contributions	12	
3.4	Capital Accounts	12	
3.5	Other Matters	12	
3.6	Additional Funds	12	
 	 	 	
 	ARTICLE 4	 	
 	ALLOCATIONS	 	
4.1	Profits	13	
4.2	Losses	13	
4.3	Change in Financial Rights	13	
4.4	Limitation on Losses	14	
4.5	Special Allocations	14	
4.6	Curative Allocations	15	
4.7	Other Allocations Rules	16	
4.8	Tax Allocations	16	
 	 	 	
 	ARTICLE 5	 	
 	DISTRIBUTIONS	 	
5.1	Cash Available For Distribution	17	
5.2	Special Tax Distributions	17	
5.3	Amounts Withheld	17	
5.4	Limitation on Distributions	18	
5.5	Division Among Members	18	

 

 	ARTICLE 6	 	
 	BOARD OF DIRECTORS	 	
6.1	Rights and Power of the Board of Directors	18	
6.2	Protection from Reliance in Good Faith	19	
6.3	Election and Replacement of Directors	19	
6.4	Liability of the Board of Directors	19	
6.5	Duties of the Board of Directors	19	
6.6	Authority to Act for the Company	20	
6.7	Meetings of Board of Directors	20	
6.8	Major Decisions	20	
6.9	Independent Activities	21	
6.10	Committees	21	
 	 	 	
 	ARTICLE 7	 	
 	MEMBERS	 	
7.1	No Agency or Authority	22	
7.2	Admission of New Members	22	
7.3	Further Assurances	22	
7.4	No Requirement Meetings; Action by the Members	22	
7.5	Voting Rights	23	
7.6	Standard of Conduct	23	
7.7	Limitations on Liability	24	
7.8	Expenses and Loans	24	
7.9	Withdrawal Rights	24	
7.10	Appraisal and Dissenters’ Rights	25	
7.11	Issuance of Additional Membership Interest	25	
 	 	 	
 	ARTICLE 8	 	
 	MEMBERS’ REPRESENTATIONS AND WARRANTIES	 	
8.1	General Representations and Warranties	25	
8.2	Investment Representations	27	
 	 	 	
 	ARTICLE 9	 	
 	OFFICERS	 	
9.1	Officers	27	
9.2	Power and Authority of Officers	28	
9.3	Election and Term	28	
9.4	Chief Executive Officer	28	
9.5	President	28	
9.6	Secretary	28	
9.7	Right to Rely on Director, Chief Executive Officer, President or Secretary	28	
9.8	Standard of Conduct	29	
9.9	Resignation and Removal	29	
9.10	Vacancies	29	
9.11	Compensation	29	
9.12	Non-Compete, Non-Disclosure, and Non-Solicitation Agreement	29	
 
ii 

 

 	ARTICLE 10	 	
 	CONFLICTS OF INTEREST AND OTHER ACTIVITIES	 	
10.1	Conflict of Interest Transactions	29	
10.2	Independent Activities; Confidentiality of Information	30	
 	 	 	
 	ARTICLE 11	 	
 	INDEMNIFICATION	 	
11.1	Indemnification of Members and Officers	30	
11.2	Indemnification of Others	32	
11.3	Contractual Indemnification	33	
11.4	Insurance	33	
 	 	 	
 	ARTICLE 12	 	
 	FISCAL MATTERS; BOOKS AND RECORDS	 	
12.1	Books and Records	33	
12.2	Additional Records	33	
12.3	Reports	34	
12.4	Other Information	34	
12.5	Tax Returns	35	
12.6	Special Basis Adjustment	35	
12.7	Tax Matters Member	35	
12.8	Bank Accounts	36	
12.9	Accounting Decisions	36	
 	 	 	
 	ARTICLE 13	 	
 	TRANSFER OF MEMBERSHIP INTERESTS	 	
13.1	Restriction on Transfers	36	
13.2	Certain Permitted Transfers	36	
13.3	Conditions to Permitted Transfers	37	
13.4	Right of First Refusal	37	
13.5	Effect of Prohibited Transfers	39	
13.6	Rights of Unadmitted Transferees	40	
13.7	Admission of Transferees as Members	40	
13.8	Distributions and Allocations	40	
13.9	Class A Member Preemptive Rights	41	
13.10	Class A Member Tag-Along Rights	42	
13.11	Drag-Along Rights	43	
 	 	 	
 	ARTICLE 14	 	
 	RETIRING EVENTS; PURCHASE UPON TERMINATION OF EMPLOYMENT OF CLASS B MEMBER	 	
 	 	 	
14.1	Certain Definitions	44	
14.2	Option to Purchase	45	
14.3	Closing Procedures and Purchase Price	45	
 
iii 

 

14.4	Net Equity	47	
14.5	Termination of Employment of Class B Member	48	
 	 	 	
 	ARTICLE 15	 	
 	DISSOLUTION AND WINDING UP	 	
15.1	Dissolution	48	
15.2	Continuation	49	
15.3	Winding Up, Liquidation and Distribution of Assets	49	
15.4	Compliance With Requirements of Regulations	50	
15.5	Articles of Termination	50	
 	 	 	
 	ARTICLE 16	 	
 	AMENDMENTS	 	
16.1	Amendments	50	
16.2	Limitation on Amendments	51	
 	 	 	
 	ARTICLE 17	 	
 	POWER OF ATTORNEY	 	
17.1	Appointment	51	
17.2	Exercise and Survival	52	
 	 	 	
 	ARTICLE 18	 	
 	MISCELLANEOUS	 	
18.1	Statutory Override	52	
18.2	Liquidation Safe Harbor Valuation	52	
18.3	Notices	53	
18.4	Binding Effect	53	
18.5	No Third Party Beneficiary	53	
18.6	Time	53	
18.7	Headings	53	
18.8	Severability	53	
18.9	Incorporation by Reference	53	
18.10	Additional Assurances	54	
18.11	Entire Agreement	54	
18.12	Governing Law	54	
18.13	Counterpart Execution	54	
18.14	Electronic Signatures	54	
18.15	Specific Performance	54	

EXHIBITS:	
Exhibit A - Members	
 
iv 

 
OPERATING AGREEMENT
OF
BASKINS ACQUISITION HOLDINGS, LLC
 
THIS OPERATING AGREEMENT (“ Agreement ” or “ Operating Agreement ”) is made, adopted and is effective as of June 2, 2009, by and among each of the Members whose signatures appear on the signature pages hereof. All capitalized terms used in this Agreement, including the terms used above and in the Recitals below, shall have the meanings set forth in Section 1.1 below.
 
R E C I T A L S:
 
WHEREAS, The Company was formed for the purposes set forth herein; and
 
WHEREAS, in accordance with the Act, each Member desires to enter into this Agreement to set forth the respective rights, powers and interests of the Members and to provide for the management and governance of the business and affairs of the Company.
 
NOW, THEREFORE, in consideration of the premises, promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
 
ARTICLE 1
DEFINITIONS
 
1.1                                Definitions. As used in this Agreement the following initially capitalized words and phrases shall have the following meanings:
 
“ Act ” means the Delaware Limited Liability Company Act, as amended from time to time (or any corresponding provisions of succeeding law).
 
“ Additional Membership Interest” means (i) additional Membership Interests (including new classes or series thereof having rights which are different than the rights of any then-existing class or series); (ii) obligations, evidences of indebtedness or other securities or interests convertible into or exchangeable for Membership Interests or Membership Equivalents; and (iii) Membership Equivalents.
 
“ Adjusted Capital Account Deficit ” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
 
(a)                                  Credit to such Capital Account any amounts which such Member is obligated to restore, pursuant to any provision of this Agreement, or is deemed to be obligated to restore pursuant to the penultimate sentences of §§1.704-2(g)(l) and 1.704-2(i)(5) of the Regulations; and

 
(b)                                  Debit to such Capital Account the items described in §§1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6) of the Regulations.
 
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of § 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.
 
“ Adverse Withdrawal ” has the meaning set forth in Section 7.9 hereof.
 
“ Affiliate ” means, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any Person owning or controlling ten percent (10%) or more of the outstanding voting interests of such Person, (iii) any officer, director, or general partner of such Person, or (iv) any Person who is an officer, director, general partner, trustee, or holder of ten percent (10%) or more of the voting interests of any Person described in clauses (i) through (iii) of this sentence. For purposes of this definition, the term “controls,” “is controlled by” or “is under common control with” shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting interests by contract or otherwise.
 
“ Agreement ” or “ Operating Agreement ” means this Operating Agreement, as amended from time to time.
 
“ Articles ” means the Certificate of Formation of the Company as filed with the office of the Delaware Secretary of State, as amended or restated from time to time.
 
“ Assignee Interest ” means an interest in the Company comprised solely of Financial Rights held by a Holder.
 
“ Bankruptcy ” means, with respect to any Person, the occurrence of any of the following events: (i) such Person makes an assignment for the benefit of creditors; (ii) such Person files a voluntary petition in bankruptcy; (iii) such Person is adjudged bankrupt or insolvent, or has entered against him an order for relief in any bankruptcy or insolvency proceeding; (iv) such Person files a petition or answer by the Person seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (v) such Person files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against him in any proceeding for reorganization or of a similar nature; (vi) such Person seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of such Person or of all or any substantial part of his properties; or (vii) one hundred twenty (120) days after the commencement of any proceeding against such Person seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation if the proceeding has not been dismissed, or if within ninety (90) days after the appointment, with or without such Person’s consent or acquiescence, of a trustee, receiver or liquidator of such Person or all or any substantial portion of his properties, the appointment is not vacated or stayed, or within ninety (90) days after the expiration of any such stay the appointment is not vacated.
 
“ Banyan ” means Banyan Equity Investors II, Inc.
 
2 

 
“ Base Rate ” means, for each calendar month, a rate of interest per annum equal to the prime rate in the United States reported in the Money Rates section of The Wall Street Journal on the first Business Day of that month, minus two percent (2%). If such rate is no longer published, the term “Base Rate” shall mean two percent (2%) less than the daily average prime rate published in another business newspaper, or business section of a newspaper, of national standing chosen by Lender.
 
“ Board ” or “ Board of Directors ” means the Board of Directors of the Company.
 
“ Board Observer ” means an individual appointed to attend all meetings of the Board of Directors and to participate therein, but without any right to vote on any matter presented at such meeting or take any other action.
 
“ Business Day ” means any day other than a Saturday, a Sunday or a day on which national banks located in Houston, Texas, are authorized or obligated to close their regular banking business.
 
“ Capital Account ” means, as of any given date, the capital account of each Member as described in Section 3.4 and determined in accordance with this Agreement. The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with §1.704-1(b) of the Regulations, and such provisions shall be interpreted and applied in a manner consistent with such Regulations.
 
“ Capital Contributions ” means, with respect to any Member, the amount of money and the initial Gross Asset Value of any property (other than money) contributed to the Company with respect to the Membership Interest held by such Person.
 
“ CapSource ” means CapSource 2000 Fund, L.P., a Mississippi limited partnership.
 
“ Cash Available For Distribution ” means, for any period, the amount, if any, by which the Company’s total cash funds exceed the current and anticipated needs of the Company to utilize such funds to pay or create reserves for: (i) expenses or expenditures, including salaries, related to the Company’s business operations; (ii) expenses, expenditures, advances or investments made or incurred in connection with any new or additional business activity undertaken by the Company; (iii) payments of the principal and interest due in respect of indebtedness for which the Company is obligated; (iv) capital improvements, replacements, and contingencies; and (v) any other actual cost or expenditure incurred for the benefit of the Company. The amount, if any, of Cash Available For Distribution shall be determined by the Members.
 
“ CGP ” means CGP Baskins, LLC, a Delaware limited liability company.
 
“ Class A Member ” means any Person (i) whose name is set forth on Exhibit A attached hereto or who has become a Class A Member, pursuant to the terms of this Agreement; and (ii) who is the owner of a Class A Membership Interest. “ Class A Members ” means all such Persons.
 
3 

“ Class A Membership Interest ” means, with respect to each Class A Member, such Class A Member’s interest in the Company including any and all rights and benefits to which a Class A Member may be entitled as provided in this Agreement, together with all obligations of a Class A Member to comply with the terms and provisions of this Agreement. The Class A Membership Interest of any Member at any time may be expressed as a percentage, which shall be determined by the ratio which the Class A Membership Interest held by such Class A Member bears to the total Class A Membership Interests held by all the Class A Members. Such Class A Membership Interest includes, without limitation: (i) the Governance Rights of a Class A Member, (ii) the Financial Rights of a Class A Member, and (iii) the right of a Class A Member to Transfer Governance Rights or Financial Rights to the extent permitted under this Agreement.
 
“ Class A Preferred Return ” means an eight percent (8%) cumulative preferred return on the Unreturned Capital Contributions of each Class A Member, accrued on a monthly basis.
 
“ Class B Member ” means any Person (i) whose name is set forth on Exhibit A attached hereto or who has become a Class B Member, pursuant to the terms of this Agreement; and (ii) who is the owner of a Class B Membership Interest. “ Class B Members ” means all such Persons.
 
“ Class B Membership Interest ” means with respect to each Class B Member, such Class B Member’s interest in the Company including any and all rights and benefits to which a Class B Member may be entitled as provided in this Agreement, together with all obligations of a Class B Member to comply with the terms and provisions of this Agreement. The Class B Membership Interest of any Member at any time may be expressed as a percentage, which shall be determined by the ratio which the Class B Membership Interest held by such Class B Member bears to the total Class B Membership Interests held by all the Class B Members. Such Class B Membership Interest includes, without limitation: (i) the Governance Rights of a Class B Member, (ii) the Financial Rights of a Class B Member, and (iii) the right of a Class B Member to Transfer Governance Rights or Financial Rights to the extent permitted under this Agreement.
 
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law).
 
“ Company ” means Baskins Acquisition Holdings, LLC, a Delaware limited liability company.
 
“ Company Minimum Gain ” has the same meaning as the term “partnership minimum gain” set forth in §1.704-2(b)(2) of the Regulations and shall be determined in accordance with §1.704-2(d) of the Regulations.
 
“ Company Property ” means all property of any kind, real or personal, tangible or intangible, which is owned by the Company or in which the Company has an interest.
 
“ Contract ” shall mean any contract, arrangement, undertaking or understanding, whether oral or written.
 
“ Depreciation ” means, for each Fiscal Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such Fiscal
 
4 

 
Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.
 
“ Director ” means, individually, any natural person serving on the Board. A Director is hereby designated as a “Manager” of the Company within the meaning of Section 18-101(10) of the Act.
 
“ Dissolution Event ” has the meaning set forth in Section 15.1 hereof.
 
“ DSV ” means Diamond State Ventures II Limited Partnership, an Arkansas limited partnership.
 
“ Financial Rights ” means a Member’s or Holder’s rights to (i) share in Profits and Losses, and (ii) receive or share in distributions, as provided in this Agreement.
 
“ Fiscal Year ” means the calendar year, and a Fiscal Year shall include any partial Fiscal Year at the beginning and end of the Company term.
 
“ GAAP ” means generally accepted accounting principles in effect in the United States from time to time.
 
“ Governance Rights ” means all rights of a Member as a Member in the Company other than Financial Rights and the right to assign Financial Rights.
 
“ Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:
 
(a)                    The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as determined by agreement of all the Class A Members;
 
(b)                    The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Board of Directors as of the following times: (A) the acquisition of an additional Membership Interest by any new or existing Member in exchange for more than a de minimis Capital Contribution; (B) the distribution by the Company to a Member of more than a de minimis amount of Company Property as consideration for a Membership Interest; and (C) the liquidation of the Company within the meaning of §1.704-1(b)(2)(ii)(g)of the Regulations; provided, however, the adjustments pursuant to clauses (A) and (B) above shall be made only if the Members reasonably determine that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company; provided further, however, if the adjustments are required by reason of the occurrence of a Retiring Event,
 
5 

 
the gross fair market value of the Company Property shall be equal to its appraised value as determined by a qualified appraiser;
 
(c)                     The Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross fair market value of such asset on the date of distribution as reasonably determined by the distribute and the Board; and
 
(d)                    The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to §§734(b) or 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulation §1.704-1(b)(2)(iv)(m) and subparagraph (vi) of the definition of “Profits” and “Losses” and Section 4.5(g)  hereof; provided, however, the Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent that the Members determine that an adjustment pursuant to subparagraph (b) hereof is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d).
 
(e)                     If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (a) or (c) hereof, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.
 
“ Holder of Financial Rights ” or “ Holder ” means a Person who holds an Assignee Interest and either (i) has not become a Member of the Company; or (ii) such Person’s Membership Interest has been terminated (whether such termination is by reason of the death, dissolution, Withdrawal, incompetency, insanity or Bankruptcy of such Member or the occurrence of any other event that terminates the continued Membership Interest of such Member). A Holder shall be entitled to the allocations and distributions attributable to the Assignee Interest held by him and shall be required to make any Capital Contributions to be made in respect of such Assignee Interest; however, such Holder shall have no right to participate in the management of the Company or otherwise to be treated as a Member. Without limiting the generality of the foregoing, and except as expressly provided in the Act, a Holder (a) shall have no right to any information or accounting of the affairs of the Company, (b) shall not be entitled to inspect the books or records of the Company, and (c) shall not have any of the Governance Rights (voting or otherwise) of a Member under the Act or this Agreement.
 
“ Immediate Family ” shall include only a Member’s spouse, natural or adoptive lineal ancestors or descendants, and trusts for his, her or their exclusive benefit.
 
“ Initial Capital Contributions ” has the meaning set forth in Section 3.2 hereof.
 
“ Majority Vote ” means (i) the affirmative vote or consent of Members holding more than fifty percent (50%) of the total Units then held by Members, or (ii) with respect to actions to be taken by any class of Members voting as a class, the affirmative vote or consent of the Members of such class holding more than fifty percent (50%) of the Units then held by all the Members of such class; provided, however, where the vote or consent concerns a matter on which a Member
 
6 

 
cannot vote in accordance with the terms of this Agreement or applicable law (other than the failure of such a Member to attend a meeting for such vote) the Members shall not include such Member in the calculation of the Units then held by Members the votes or consents with respect to such matter.
 
“ Member Nonrecourse Debt ” has the same meaning as the term “partner nonrecourse debt” set forth in §1.704-2(b)(4) of the Regulations.
 
“ Member Nonrecourse Debt Minimum Gain ” means, with respect to each Member Nonrecourse Debt, an amount equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with §1.704-2(i)(3) of the Regulations.
 
“ Member Nonrecourse Deductions ” has the same meaning as the term “partner nonrecourse deductions” set forth in §§1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.
 
“ Members ” means the Class A Members and the Class B Members where no distinction is required by the context in which such term is used.
 
“ Membership Equivalents ” means (without duplication with any Units or other Membership Equivalents) rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Membership Interests or securities exercisable for or convertible or exchangeable into Membership Interests, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
 
“ Membersh ip Interest” means the Class A Membership Interests and the Class B Membership Interests where no distinction is required by the context in which such term is used herein.
 
“ MSC ” means MidStates Capital Fund II, L.P., a Kansas limited partnership.
 
“ Nonrecourse Deductions ” has the meaning set forth in §1.704-2(b)(1) of the Regulations.
 
“ Nonrecourse Liability ” has the meaning set forth in §1.704-2(b)(1) of the Regulations.
 
“ Notice ” means any notice, payment, demand or communication required or permitted to be given by any provision of this Agreement, which shall be in writing and shall be delivered as set forth in Section 19.2 hereof.
 
“ Officer ” means, collectively, and “ Officer ” means each of, individually, the Chief Executive Officer, the President, the Secretary and any other Officer of the Company elected or designated by the Board of Directors, as provided herein, to act on behalf of the company pursuant to the provisions of this Agreement.
 
“ Percentage , Interest” means, with respect to a Member as of any date, such Member’s portion of all of the outstanding Units, expressed as a percentage, and adjusted from time to time
 
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in accordance with this Agreement. The percentage referenced in the preceding sentence shall be determined (a) by dividing (x) the total number of Units held by such Member as of such date by (y) the total number of Units outstanding as of such date
 
“ Permitted Transfer ” means any Transfer of the Membership Interest of a Member permitted under the terms of this Agreement.
 
“ Person ” means any individual, partnership, limited liability company, corporation, trust, or other entity.
 
“ Personal Representative ” means (i) with respect to any individual, such Person’s heirs, legatees, legal representative, executor, successors, transferees, assigns or any other Person who succeeds to a Person’s estate following such Person’s death, legal incompetence or Bankruptcy and any transferee of such successor; and (ii) with respect to any Person, other than an individual, such Person’s successors, transferees, assigns or any other Person who succeeds to such Person’s estate following such Person’s dissolution or Bankruptcy or any transferee of such successor.
 
“ Profits ” and “ Losses ” means, for each Fiscal Year, an amount equal to the Company’s taxable income or loss for such year or period, determined in accordance with §703 of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to §703 of the Code shall be included in taxable income or loss), with the following adjustments:
 
(i)                                      Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses” shall be added to such taxable income or loss;
 
(ii)                                   Any expenditures of the Company described in §705(a)(2)(B) of the Code or treated as expenditures under §705(a)(2)(B) of the Code pursuant to §1.704-1(b)(2)(iv)(i) of the Regulations, and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses”, shall be subtracted from such taxable income or loss;
 
(iii)                                In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraphs (b) or (c) of the definition of “Gross Asset Value,” the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;
 
(iv)                               Gain or loss resulting from any disposition of Company Property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the Company Property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
 
(v)                                  In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be
 
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taken into account Depreciation for such fiscal year or other period, computed in accordance with the terms hereof; and
 
(vi)                               To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to §§734(b) or 743(b) of the Code is required pursuant to §1.704-1(b)(2)(iv)(m)(4) of the Regulations to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s Membership Interest, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Profits or Losses;
 
(vii)                            Notwithstanding any other provision contained herein to the contrary, any items that are specially allocated pursuant to Section 4.5 or 4.6 hereof shall not be taken into account in computing Profits or Losses.
 
The amounts of the items of Company income, gain, loss, or deduction available to be specially allocated pursuant to Sections 4.5 and 4.6 hereof shall be determined by applying rules analogous to those set forth in Sections (i) through (vi) above.
 
“ Regulations ” means the Income Tax Regulations including Temporary Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
 
“ Regulatory Allocations ” has the meaning set forth in Section 4.6 hereof.
 
“ Securities Act ” means the Securities Act of 1933, as amended from time to time, or any similar federal statute, together with the rules and regulations promulgated thereunder, as the same are in effect from time to time.
 
“ Security ” or “ Securities ” means any units of membership interest (including Class A Units or Class B Units) and any debt securities (including debentures and notes) of the Company whether or not presently authorized, and rights, options or warrants to purchase such membership interests, and securities of any type whatsoever that are, or may become, convertible into membership interests; provided that the terms “ Security ” and “ Securities ” do not include (i) securities issued pursuant to any acquisition of another business entity, merger, or purchase of substantially all the assets of another business entity, (ii) any borrowings from financial institutions or other persons by the Company, whether or not presently authorized, including any type of loan or payment evidenced by any type of debt instrument, provided such borrowings do not have any equity features such as warrants, options or other rights to purchase membership interests and are not convertible into membership interests of the Company; (iii) securities issued to employees, officers or directors of the Company pursuant to any option, unit purchase or unit bonus plan, agreement or arrangement approved by the Board; (iv) securities issued in connection with any unit split, unit dividend or recapitalization of the Company; (v) any right, option or warrant to acquire any security convertible into the securities excluded from the definition of Securities pursuant to subsections (i) through (iv) above; and (vi) any securities issuable upon the exercise or conversion of Securities according to their terms.
 
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“ Substitute Member ” means any Person admitted to the Company as a Member pursuant to Article 13 hereof.
 
“ Super-Majority Vote ” means (i) the affirmative vote or consent of Members holding more than 66-2/3% of the total Units then held by the Members, or (ii) with respect to actions to be taken by any class of Members voting as a class, the affirmative vote or consent of the Members of such class holding more than 66-2/3% of the Units then held by all the Members of such class; provided, however, where the vote or consent concerns a matter on which a Member cannot vote in accordance with the terms of this Agreement or applicable law (other than the failure of such a Member to attend a meeting for such vote) the Members shall not include such Member in the calculation of the Units then held by Members the votes or consents with respect to such matter.
 
“ Tax Distributions ” hall have the meaning set forth in Section 5.2.
 
“ Taxing Authority ” means any federal, state, local or foreign government, or instrumentality thereof, that levies and collects taxes, interest or penalties, however, designated, on the Company’s income or gain (or on any Member’s share of such income or gain).
 
“ Transfer ” means as a noun, any voluntary or involuntary transfer, sale, pledge, hypothecation or other disposition and, as a verb, to voluntarily or involuntarily transfer, sell, pledge, hypothecate or otherwise dispose of.
 
“ Unit ” means the Membership Interest of a Member, expressed numerically. Each Unit represents a proportionate share of all of the Membership Interests. The number of Units held by each Member is set forth opposite such Member’s name on Exhibit A attached hereto, as modified from time to time in connection with the subsequent issuance, transfer or other matters affecting the Units and Members.
 
“ Unreturned Capital Contribution ” means the amount of each Class A Member’s original Capital Contribution plus any additional Capital Contributions made by such Member reduced by the amount of any distributions received by such Member pursuant to Section 5.1(b).
 
“ Withdrawal ” means the retirement, resignation, withdrawal, or any other voluntary event that terminates the continued Membership Interest of a Member. “ Withdraw ” means to retire, resign, withdraw, or otherwise voluntarily terminate the continued Membership Interest of a Member. “ Withdrawing ” means the act of retiring, resigning, withdrawing, or otherwise voluntarily terminating the continued Membership Interest of a Member.
 
1.2                                Other Terms. All initially capitalized terms used in this Agreement that are not defined in Section 1.1 hereof shall have the meanings set forth elsewhere in this Agreement.
 
ARTICLE 2
ORGANIZATION
 
2.1                                Organization. The Company has been organized as a Delaware limited liability company under and pursuant to the Act by the filing of a Certificate of Formation with the Office of the Secretary of State of Delaware as required by the Act. The Members and the Company
 
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hereby ratify and affirm that Kevin R. Burns is an “authorized person” within the meaning of the Act for the execution, delivery and filing of the Certificate of Formation and other acts necessary or advisable in connection with the formation of the Company. Further, the execution, delivery and filing of the Certificate of Formation by such authorized person is hereby ratified and affirmed. The Company, and if required, each of the Members shall execute or cause to be executed from time to time all other instruments, certificates, notices and documents and shall do or cause to be done all such acts and things as may now or hereafter be required for the formation, valid existence and, when appropriate, termination of the Company as a limited liability company under the laws of the State of Delaware. This Agreement is adopted and approved as the limited liability company agreement of the Company and shall govern the business and affairs of the Company, the relationship among the Members and the rights and obligations of the Members.
 
2.2                                Name. The name of the Company is Baskins Acquisition Holdings, LLC. All business of the Company shall be conducted in such name or any other name adopted by the Members in accordance with the Act.
 
2.3                                Principal Office; Registered Office; Registered Agent.
 
(a)                    The principal office or principal executive office of the Company shall initially be 1800 Baltimore Avenue, Suite 300, Kansas City, Missouri 64108; provided, however, that commencing on or about July 1, 2009 the principal office or principal executive office of the Company shall be 205 Commerce Street, Livingston, Texas 77351, or such other location as the Members may designate from time to time.
 
(b)                    The registered office of the Company in the State of Delaware shall be the initial registered office named in the Articles or such other location as the Members may designate from time to time.
 
(c)                     The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Articles or such other Person as the Members may designate from time to time.
 
2.4                                Purposes. The Company is organized to (a) engage in any and all business activities that may lawfully be conducted by a limited liability company under the Act; and (b) exercise all powers necessary to, connected with or incidental to the accomplishment of any business that may lawfully be conducted by limited liability companies under the Act
 
2.5                                Duration. The date of formation and commencement of existence of the Company shall be the date specified in the Articles. Except as provided in Section 15.1 hereof, the existence of the Company shall be perpetual.
 
2.6                                No State Law Partnership. The Members intend that the Company shall not be a partnership (including a limited partnership) or joint venture, and that no Member shall be a partner or joint venture of any other Member by virtue of this Agreement, for any purposes other than federal and, if applicable, state tax purposes, and neither this Agreement nor any other document entered into by the Company or any Member shall be construed to suggest otherwise. The Members intend that the Company shall be treated as a partnership for federal and, if applicable, state and local income tax purposes, and each Member and the Company shall file all
 
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tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.
 
ARTICLE 3
MEMBERS AND CAPITAL CONTRIBUTIONS
 
3.1                                Membership Interests. The name of each Member, together with the Initial Capital Contribution made by such Member and the number of Units held by such Member, is as set forth on Exhibit A attached hereto, which shall be amended from time to time as required to reflect any change with respect to the information set forth therein.
 
3.2                                Initial Capital Contributions; Units of Class A and B Membership Interests.
 
(a)                    The capital to be contributed to the Company by the investors in the Class A Membership Interests shall be equal to $4,000,000 which shall be divided into 4,000 Units of Class A Membership Interest at $1,000 per Unit of Class A Membership Interest.
 
(b)                    The maximum number of Class B Units the Company shall issue is 850.
 
3.3                                Additional Capital Contributions. Except as otherwise expressly provided in this Agreement or in any other agreement among the Members or as required by applicable law, a Member shall be liable only to make his Initial Capital Contributions and shall not be required to lend funds to the Company or, after his Initial Capital Contributions have been made or paid, to make any additional Capital Contributions to the Company.
 
3.4                                Capital Accounts. The Company shall establish and maintain a separate Capital Account for each Member. In accordance with § 1.704-1(b)(2)(iv)(1) of the Regulations, if a Member Transfers all or any portion of his Membership Interest in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor attributable to the transferred Membership Interest, and a separate Capital Account shall thereafter be maintained for such transferee.
 
3.5                                Other Matters.
 
(a)                    Except as otherwise provided in this Agreement, no Member shall demand or receive a return of his Capital Contributions without the consent of all the Class A Members. Under circumstances requiring a return of any Capital Contributions, no Member shall have the right to receive property other than cash in return for such Member’s Capital Contributions.
 
(b)                    Except as otherwise provided in this Agreement, no Member shall receive any interest, salary, or drawing with respect to his Capital Contributions or his Capital Account or for services rendered on behalf of the Company or otherwise in his capacity as a Member.
 
3.6                                Additional Funds. The Members recognize that the Company may require additional funds to pay the costs of conducting its business. If the Members determine that additional funds are required to pay such costs, the additional funds may be obtained by (a) utilizing any reserves established by the Company; (b) obtaining loans from third parties on such terms as the Members determine; (c) obtaining a loan from one or more of the Members in
 
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accordance with Section 7.8(c)  hereof; (d) issuing Additional Membership Interests to existing Members or other Persons in accordance with Section 7.11 hereof.
 
ARTICLE 4
ALLOCATIONS
 
4.1                                Profits. After giving effect to the special allocations set forth in Sections 4.5 and 4.6 hereof, Profits for any Fiscal Year shall be allocated in the following order and priority:
 
(a)                    First, to the Members in proportion to, and to the extent of, any deficit balances in their respective Capital Accounts until all such Capital Accounts have been restored to zero;
 
(b)                    Second, after giving effect to the allocations made pursuant to Section 4.1(a) , among the Members as necessary to cause the Capital Account balance of each Member to at least equal such Member’s Unreturned Capital Contribution;
 
(c)                     Third, after giving effect to the allocations made pursuant to Sections 4.1(a)  and 4.1(b) . among the Members as necessary to cause the Capital Account balance of each Member to at least equal the sum of (i) such Member’s Unreturned Capital Contributions plus (ii) such Members unpaid Class A Preferred Return (the sum of the amounts in clauses (i) and (ii) for each Member is such Member’s “Total Preference Amount”); and
 
(d)                    Fourth, after giving effect to the allocations made pursuant to Sections 4.1(a)  through 4.1(c) , among the Members as necessary to cause the portion of each Member’s Capital Account balance exceeding such Member’s Total Preference Amount to be in proportion to each such Member’s then respective Percentage Interest.
 
4.2                                Losses. After giving effect to the special allocations set forth in Sections 4.5 and 4.6 hereof, and subject to the limitations set forth in Section 4.4 hereof, Losses for any Fiscal Year shall be allocated among the Members in the following order and priority:
 
(a)                    First, among the Members as necessary to cause each Member’s capital Account balance to equal such Member’s Total Preference Amount;
 
(b)                    Second, after giving effect to the allocations made pursuant to Section 4.2(a) , among the Members as necessary to cause the Capital Account balance of each Member to equal such Member’s Unreturned Capital Contribution;
 
(c)                     Third, after giving effect to the allocations made pursuant to Section 4.2(a)  and 4.2(b) , among the Members as necessary to cause the Capital Account balance of each Member to equal zero; and
 
(d)                    Fourth, among the Members in proportion to their respective Percentage Interests.
 
4.3                                Change in Financial Rights. Notwithstanding anything to the contrary contained in this ARTICLE 4 , if the Financial Rights held by any Member changes during a Fiscal Year for any reason, the allocations of Profits, Losses and items of income, gain, loss, and deduction shall be adjusted as necessary to reflect the varying Financial Rights of the parties
 
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during such Fiscal Year. Such adjustment shall be based on the proportion of the Fiscal Year such person held such Financial Rights; provided, however, in the event of any significant transactions or uneven income or loss, the Members may direct that a closing of the books method or a hybrid method be used.
 
4.4                                Limitation on Losses. The Losses allocated pursuant to Section 4.2 hereof shall not exceed the maximum amount of Losses that can be so allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Fiscal Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 4.2 hereof, the limitation set forth in this Section 4.4 shall be applied on a Member by Member basis so as to allocate the maximum permissible Loss to any Member under §1.704-1(b)(2)(ii)(d) of the Regulations.
 
4.5                                Special Allocations. The following special allocations shall be made in the following order:
 
(a)                        Minimum Gain Chargeback. Except as otherwise provided in §1.704-2(f) of the Regulations, notwithstanding any other provision of this ARTICLE 4 , if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to the portion of such Person’s share of the net decrease in Company Minimum Gain, determined in accordance with §1.704-2(g) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto, and the items to be allocated shall be determined in accordance with §§1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 4.5(a)  is intended to comply with the minimum gain chargeback requirement in §1.704-2(f) of the Regulations and shall be interpreted consistently therewith.
 
(b)                        Member Nonrecourse Debt Minimum Gain Chargeback. Except as otherwise provided in §1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this ARTICLE 4 , if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Person who has a share of the Member Nonrecourse Debt Minimum Gain, determined in accordance with §1.704-2(i)(4) of the Regulations, shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Person’s share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with §1.704-2(i)(4) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto, and the items to be allocated shall be determined in accordance with §§1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 4.5(b)  is intended to comply with the minimum gain chargeback requirement in §1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith. It is the intent that this Section 4.5(c) be interpreted to comply with the alternative test for economic effect set forth in Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.
 
(c)                         Qualified Income Offset. In the event that any Member unexpectedly receives any adjustments, allocations, or distributions described in §§1.704-1(b)(2)(ii)(d)(4), 1.704-
 
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1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company gross income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible; provided, however, an allocation pursuant to this Section 4.5(c)  shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this ARTICLE 4 have been tentatively made as if this Section 4.5(c)  was not in this Agreement.
 
(d)                        Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of §§1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Member shall be specially allocated items of Company gross income and gain in the amount of such excess as quickly as possible; provided, however, an allocation pursuant to this Section 4.5(d)  shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this ARTICLE 4 have been made as if Section 4.5(c)  hereof and this Section 4.5(d)  were not in this Agreement.
 
(e)                         Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or other period shall be allocated among the Members in proportion to the ratio of the Profits or Losses allocated to each Member to the total Profits or Losses allocated to all Members.
 
(f)                          Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Fiscal Year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with §1.704-2(i)(1) of the Regulations.
 
(g)                         §754 Adjustment. To the extent that an adjustment to the adjusted tax basis of any Company asset pursuant to §§734(b) or 743(b) of the Code is required to be taken into account in determining Capital Accounts as a result of a distribution to a Member in complete liquidation of his interest in the Company, pursuant to §1.704-1(b)(2)(iv)(m)(2) or §1.704-1(b)(2)(iv)(m)(4) of the Regulations, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Members in proportion to their interest in the Company in the event that §1.704-1(b)(2)(iv)(m)(2) of the Regulations applies, or to the Member to whom such distribution was made in the event that §1.704-1(b)(2)(iv)(m)(4) of the Regulations applies.
 
4.6                                Curative Allocations. The allocations set forth in Sections 4.4 , 4.5(a) , 4.5(b) , 4.5(c), 4.5(d), 4.5(e) , 4.5(f) , and 4.5(g) hereof (the “ Regulatory Allocations ”) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss, or deduction pursuant to this Section 4.6 . Therefore, notwithstanding any other provision of this ARTICLE 4 (other than the Regulatory Allocations), the Company shall make offsetting special allocations of other items of Company income, gain, loss or deduction among the Members so that after, such offsetting
 
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allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Sections 4.1 , 4.2 and 4.7 hereof. Any elections or decisions relating to allocations made pursuant to this Section 4.6 shall be made by the Members and, in exercising their discretion under this Section 4.6 , the Members shall take into account future Regulatory Allocations under Sections 4.5(a)  and 4.5(b)  that, although not yet made, are likely to offset other Regulatory Allocations previously made under Sections 4.5(e)  and 4.5(f)  hereof.
 
4.7                                Other Allocations Rules.
 
(a)              For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any other items allocable to any period, shall be determined on a daily, monthly, or other basis, as determined by the Members using any permissible method under §706 of the Code and the Regulations thereunder.
 
(b)              Except as otherwise provided in this Agreement, all items of Company income, gain, loss, and deduction and any other allocations not otherwise provided for shall be divided among the Members in the same proportions as they share Profits or Losses, as the case may be, for the year.
 
(c)               The Members are aware of the income tax consequences of the allocations made by this ARTICLE 4 and hereby agree to be bound by the provisions of this ARTICLE 4 in reporting their share of Company income and loss for income tax purposes.
 
(d)              To the extent permitted by §1.704-2(h)(3) of the Regulations, the Company shall endeavor to treat distributions of Cash Available For Distribution as having been made from the proceeds of a Nonrecourse Liability only to the extent that such distributions would cause or increase an Adjusted Account Deficit for any Member.
 
4.8                                Tax Allocations.
 
(a)                        In accordance with §704(c) of the Code and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of Gross Asset Value set forth in Section 1.2 hereof).
 
(b)                        In the event the Gross Asset Value of any Company asset is adjusted pursuant to the definition thereof, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take into account any variation between the adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under §704(c) of the Code and the Regulations thereunder.
 
(c)                         Any elections or other decisions relating to such allocations shall be made by the Board in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 4.8 are solely for purposes of federal, state, and local taxes
 
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and shall not affect, or in any way be taken into account in computing any Person’s Capital Account or share of Profits, Losses, or other items or distributions pursuant to any provision of this Agreement.
 
ARTICLE 5
DISTRIBUTIONS
 
5.1                                Cash Available For Distribution. Except as otherwise provided in Section 5.2 and 15.1 hereof with respect to tax distributions and the dissolution of the Company, Cash Available For Distribution, if any, shall be distributed, at such times as the Members shall determine, in the following order and priority:
 
(a)                        First, to the Class A Members in proportion to the Class A Preferred Return of all Class A Members until they have received aggregate distributions under this Section 5.1(a)  equal to their respective Class A Preferred Return;
 
(b)                        Second, to the Class A Members in proportion to the Unreturned Capital Contributions of all Class A Members until the amount of their respective Unreturned Capital Contribution equals zero; and
 
(c)                         Third, among the Members in proportion to their Percentage Interests.
 
5.2                                Special Tax Distributions. Notwithstanding any other provisions of this Agreement to the contrary, within ninety (90) days following the end of each Fiscal Year, to the extent of available cash, the Company shall make a distribution of cash (a “ Tax Distribution ”) to each Member in an amount equal to the Presumed Tax Liability of each Member. As used herein, the term “ Presumed Tax Liability ” means for each Member for each Fiscal Year an amount equal to the product of (a) the amount of taxable income (in computing taxable income any items required to be separately stated under §703 of the Code shall be included in taxable income) allocated to such Members for the applicable Fiscal Year, and (b) the highest marginal tax rate on net income (excluding interest and penalties) imposed on individuals under applicable state and federal tax laws for the applicable Fiscal Year. To the extent that available cash is not sufficient to make a Tax Distribution of the Presumed Tax Liability for all Members, the available cash shall be distributed proportionately based on the Presumed Tax Liability of each Member.
 
5.3                                Amounts Withheld. All amounts withheld pursuant to the Code or any provision of any state or local tax law with respect to any payment or distribution to the Company or the Members shall be treated as amounts distributed to the Members pursuant to this ARTICLE 5 for all purposes under this Agreement. The Company is authorized to withhold from distributions to the Members and to pay over to any federal, state or local government any amounts required to be so withheld pursuant to the Code, the Regulations or any provision of any other federal, state or local law and shall allocate such amount to the Member with respect to which such amount was withheld.
 
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5.4                                Limitation on Distributions.
 
(a)                        The Company shall make no distributions to the Members except (i) as provided in this ARTICLE 5 and Section 15.3 hereof, or (ii) as otherwise agreed to by all of the Class A Members.
 
(b)                        No distribution may be made by the Company if, after giving effect to the distribution, (i) the Company would be unable to pay its debts as they become due in the normal course of business; or (ii) the Company’s total assets would be less than its total assets plus, the amount that would be needed to satisfy the preferred rights, if any, upon dissolution of any Member whose preferential rights are superior to the rights of Members receiving the distribution; provided, however, any liability for which the recourse of creditors is limited to specified property of the Company shall be excluded from the Company’s total liabilities; provided further, however, the fair market value of any asset that is subject to a liability for which the recourse of creditors is limited shall be included in the assets of the Company only to the extent that the fair market value thereof exceeds the liability to which such asset is subject.
 
(c)                         The effect of a distribution under Section 5.4(b)  hereof shall be determined as of (i) the date on which the distribution is authorized, if payment of the distribution occurs not later than four (4) months following the date on which such distribution was authorized; or (ii) the date on which the distribution is paid, if payment is made more than four (4) months after the date on which such distribution was authorized.
 
5.5                                Division Among Members. Whenever this Agreement requires that distributions of Cash Available For Distribution be distributed to any class of Members, such distributions shall be divided among the Members of such class in proportion to the ratio of the number of Units held by each Member of such class to the total number of Units held by all Members of such class as of the first day of the applicable Fiscal Year (or other period); provided, however, if the number of Units held by any Member of a class changes during any Fiscal Year (or other Period), Cash Available For Distribution for each month shall be distributed among the Members of such class in proportion to the number of Units held by each Member of such class as of the first day of each month during such Fiscal Year (or other period), and each such Member’s share of Cash Available For Distribution for such Fiscal year shall be equal to the sum of his share of the Cash Available For Distribution for each month during such Fiscal Year (or other period).
 
ARTICLE 6
BOARD OF DIRECTORS
 
6.1                                Rights and Power of the Board of Directors. (a) The Company shall be managed and the conduct of its business affairs shall be controlled exclusively by the Board of Directors, initially consisting of up to five (5) Directors. All actions by the Directors will be effective once a majority of the Directors Approve such action. The Board may delegate the management and conduct of the Company’s day-to-day business affairs to Officers of the Company that may be retained by the Company from time to time. The rights, powers and duties of the Officers in Article 6 of this Agreement shall be deemed to have been delegated to the Officers by the Board, provided that, the Board retains the right to remove, restrict, or alter any powers and rights delegated thereunder.
 
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6.2                                Protection from Reliance in Good Faith. In performing his or her duties, each Director shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by the Members, the Officers, the other Directors, employees, or committees of the Board, or by counsel, public accountants, or any other person as to matters the Board reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including without limitation information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to the existence and amount of assets from which distributions to Members might properly be paid.
 
6.3                                Election and Replacement of Directors. Directors shall be elected by the Members in accordance with the procedures set forth under this Section 6.3 . Directors shall be elected at annual meetings of the Members in accordance with the following: (i) DSV shall appoint one Director (the “ DSV Director ”); (ii) Banyan shall appoint one Director (the “ Banyan Director ); (iii) CGP shall appoint one Director (the “ CGP Director ); and (iii) the remaining two (2) Directors shall be elected by a Majority Vote of the Members. MSC and CapSource shall each be entitled to appoint one (1) Board Observer. Each Director shall serve a term of one (1) year and until his or her successor shall be duly elected or appointed, as the case may be, or until the earlier of death, resignation, removal or disqualification. Any Director may be removed upon the Majority Vote of the Members, with or without cause; provided, however that only DSV, Banyan, and CGP may remove a DSV Director, a Banyan Director, or a CGP Director, respectively, and appoint such removed Director’s replacement. A Director may resign at any time giving written notice to the Secretary of the Company. The resignation is effective without acceptance when it is actually received by the Secretary, unless a later effective time is specified in the resignation. The Board of Directors shall initially consist of Joe T. Hays (the DSV Director), John A. Miller (the Banyan Director), and William Reisler (the CGP Director). The Board Observers shall have the same rights as Directors except that they shall not have the right to vote at meetings of the Board of Directors.
 
6.4                                Liability of the Board of Directors. No Director nor any of such Director’s agents, partners, employees, counsel or Affiliates shall be liable, responsible or accountable in damages or otherwise to the Company or any Member for any action taken or failure to act (even if such action or failure to act constituted negligence on such Person’s part) on behalf of the Company within the scope of the authority conferred on the Board of Directors by this Agreement or by law, unless such act or failure to act was performed or omitted willfully or intentionally and in bad faith.
 
6.5                                Duties of the Board of Directors.
 
(a)                        The Board of Directors shall take all actions that may be necessary or appropriate for the conduct of the Company’s business in accordance with the provisions of this Agreement and applicable laws and regulations.
 
(b)                        The Board of Directors shall act at all times in good faith and with that degree of care that a prudent person in a like position would use under similar circumstances.
 
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6.6                                Authority to Act for the Company. Each Director shall have the authority to act for and bind the Company, including with respect to the execution and delivery of any document or instrument on behalf of the Company, to the extent and only to the extent that the act has been approved by the Board in accordance with the terms and provisions of this Agreement.
 
6.7                                Meetings of Board of Directors.
 
(a)                        The Board may hold its meetings in such place or places in the State of Delaware or outside the State of Delaware as it shall determine from time to time.
 
(b)                        Regular meetings of the Board shall be held at such times and at such places as the Board may determine. No notice shall be required for any regular meeting of the Board.
 
(c)                         Special meetings of the Board shall be held whenever called by any one or more Directors then in office. Notice of the day, hour and place of holding of each special meeting shall be given by email or facsimile or by causing the same to be transmitted by personal delivery, telegraph, or cable at least two (2) Business Days before the meeting to each Director. Unless otherwise indicated in the notice thereof, any and all business may be transacted at any special meeting. At any meeting at which every Director shall be present, even though without notice, any business may be transacted.
 
(d)                        A majority of the Directors in office shall constitute a quorum for the transaction of business. If at any meeting of the Board there is less than a quorum present, a majority of those present may adjourn the meeting from time to time.
 
(e)                         The members of the Board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting.
 
6.8                                Major Decisions. The following actions or decisions may not be taken by the Board without the consent of the holders of seventy-five percent (75%) of the Class A Members:
 
(a)                        changing the purposes of the Company or the nature of its business from the retail sale of western and work wear or causing or permitting the Company to engage in any activity that is not consistent with such business;
 
(b)                        acting in contravention of this Agreement;
 
(c)                         acting in a manner which would make it impossible to carry on the ordinary business of the Company, except as otherwise provided in this Agreement;
 
(d)                        confessing a judgment against the Company;
 
(e)                         merging into or consolidating with any other Person or changing the Company’s legal structure;
 
(f)                          dissolving the Company;
 
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(g)                         paying or declaring any dividend or distribution on any Membership Interests or other securities of the Company, other than (A) the Class A Membership Interests or (B) tax distributions as provided for herein;
 
(h)                        authorizing any units or other securities superior to or on parity with the Class A Membership Interests as to distributions, dividends, liquidation, redemption, conversion, registration rights, voting or assets, and any securities exchangeable, convertible or exercisable for such units or securities;
 
(i)                            altering or changing any of the powers, preferences, privileges or rights of the Class A Membership Interests or increasing or decreasing the total number of authorized Class A Membership Interests;
 
(j)                           reclassifying any Class B Membership Interests into units or other securities having preferences superior to or on parity with the Class A Membership Interests as to distributions, dividends, liquidation, redemption, conversion, registration rights, voting or assets;
 
(k)                        amending, repealing, or adding to any provision of the Company’s Articles or this Operating Agreement that adversely affects the holders of Class A Membership Interests;
 
(l)                            authorizing the voluntary or involuntary liquidation, dissolution or winding up of the Company or its business;
 
(m)                    selling all or substantially all of the assets of the Company;
 
(n)                        the commencement of any case, proceeding or other action on behalf of the Company under any existing or future law relating to bankruptcy, insolvency, reorganization or the relief of debtors or soliciting any other party to take any action in furtherance of the foregoing; and
 
(o)                        making an assignment for the benefit of creditors.
 
6.9                                Independent Activities. Subject to Section 6.10, the Directors may, notwithstanding the existence of this Agreement, engage in whatever activities they choose without having or incurring any obligation to offer any interest in such activities to the Members, and each Member hereby waives, relinquishes and renounces any such right or claim of participation.
 
6.10                         Committees. The Board of Directors may create one (1) or more committees. All members of committees of the Board of Directors must be members of the Board of Directors and shall serve at the pleasure of the Board of Directors; provided, that non-Directors may serve on any special litigation committees. The creation of a committee and appointment of a member or members to it must be approved by a majority of all the Directors in office when the action is taken. The provisions of the Act and this Agreement which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors shall apply to committees and their members as well. The Board Observers shall have the right to receive notice of all committee meetings, the right to attend all such committee meetings and the right to receive all documents delivered to the committee members.
 
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ARTICLE 7
MEMBERS
 
7.1                                No Agency or Authority. No Member is an agent of the Company solely by virtue of being a Member, and no Member has the authority to act for the Company solely by virtue of being a Member.
 
7.2                                Admission of New Members. The Board of Directors may from time to time create and issue new and additional Membership Interests of such classes, to such persons and on such terms, conditions and provisions as approved by the Board. Transferees and assignees of existing Membership Interests may be admitted to membership only in accordance with Article 11 of this Agreement and with consent of the Board.
 
7.3                                Further Assurances. The Members shall from time to time execute or cause to be executed all other documents or cause to be done all filing, recording, publishing, or other acts as may be necessary or desirable to comply with the requirements for the operation of a limited liability company under the laws of the State of Delaware and all other jurisdictions in which the Company may from time to time conduct business.
 
7.4                                No Required Meetings; Action by the Members.
 
(a)                        Meetings. The Members may, but shall not be required to hold any annual, periodic or other formal meetings. However, meetings of the Members, may be called by any Director, or by any Member or Members holding at least 5% of the Percentage Interests. The Director, Member or Members calling the meeting may designate any place within the States of Texas or Arkansas as the place of meeting for any meeting of the Members; and the Members, by a Super-Majority Vote, may designate any place outside such States as the place of meeting for any meeting of the Members. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the Company.
 
(b)                        Notice of Meetings. Except as provided in the following sentence, written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than ten, nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the Director, Member or Members calling the meeting, to each Member entitled to vote at such meeting. If all of the Members shall meet at any time and place and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken.
 
(c)                         Record Date. The record date for the purpose of determining the Members entitled to notice of a Members’ meeting, for demanding a special meeting, for voting, or for taking any other action shall be the tenth (10 th ) day prior to the meeting or other action.
 
(d)                        Quorum. A majority of all Membership Interests shall constitute a quorum for transaction of business at any meeting of Members. Member action shall be by Majority Vote of all Membership Interests, whether or not present and voting. No cumulative voting shall be permitted or allowed.
 
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(e)                         Action Without a Meeting. Any action required or permitted to be taken at any annual or special meeting of Members may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by Members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote were present and voted. Each such consent shall bear the date of signature of each Member signing the consent. Except as otherwise required by the Act, no prior notice from the signing Members to the Company or other Members shall be required in connection with the use of a written consent pursuant to this Section 7.4(d) . Notification of any action taken by means of a written consent of Members shall, however, be sent within a five (5) days after the date of the consent by the Company to all Members who did not sign the written consent. The written consents shall be delivered to the Company for inclusion in the minutes. The record date for determining Members entitled to take action without a meeting is the first date a Member signs the consent to such action.
 
(f)                          Proxies. A Member may vote either in person or by proxy executed in writing by the Member. A facsimile, telegram, telex, cablegram or other means of electronic transmission by the Member or a photographic, photostatic, facsimile or other means of electronic reproduction of a writing executed by the Member shall be treated as an execution in writing for purposes of this Section 7.4(f) . No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with an interest.
 
(g)                         Conference Telephone Meetings. Meetings of the Members may be held by means of conference telephone or similar communications equipment so long as all Persons participating in the meeting can hear each other. Participation in a meeting by means of conference telephone shall constitute presence in person at such meeting, except where a Person participates in the meeting for the express purpose of objecting to the transaction of any business thereat on the ground that the meeting is not lawfully called or convened.
 
7.5                                Voting Rights. The Members shall have the right to vote on the matters expressly set forth in this Agreement and such other matters as are otherwise presented to the Members for a vote in accordance with the procedures set forth herein. Except as otherwise provided herein, each Member: (a) is a voting Member; (b) shall be entitled to vote with respect to his Membership Interest, regardless of class; and (c) shall be entitled to exercise a percentage voting power equal to such Member’s Percentage Interest in Governance Rights. Notwithstanding the foregoing, no Member or Holder who holds only Financial Rights shall be entitled to vote; and no assignee or transferee of a Member’s Financial Rights shall be entitled to vote unless and until such Person becomes a Substitute Member in accordance with the provisions of Section 13.7 hereof.
 
7.6                                Standard of Conduct. Each Member shall discharge his duties as a Member in good faith, in a manner the Member reasonably believes to be in the best interest of the Company and with the care an ordinary prudent person in a like position would exercise under similar circumstances.
 
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7.7                                Limitations on Liability.
 
(a)                        A Member shall not be liable for any action taken as Member, or any failure to take action as a Member, except to the extent that: (i) such action or failure to take action constitutes a breach of this Agreement; (ii) the conduct of a Member fails to comply with the standards set forth in Section 7.6 hereof.
 
(b)                        No Member shall be personally liable for the acts, debts, liabilities, or any obligations of the Company, whether such arise in contract, tort or otherwise. A Member shall be liable only to make required Capital Contributions and, except as otherwise expressly provided herein, shall not be required to lend any funds to the Company.
 
7.8                                Expenses and Loans.
 
(a)                        All expenses incurred in connection with the formation and organization of the Company shall be borne by and shall be payable by the Company, and to the extent paid by any Member, the Company shall reimburse such Member the full amount thereof.
 
(b)                        All usual and customary expenses of operating the business of the Company shall be borne and shall be payable by the Company, and the Company shall adopt policies and procedures respecting the reimbursement of expenses incurred by the Members on behalf of the Company. Each Member may charge the Company for and obtain reimbursement of expenses reasonably incurred on behalf of the Company provided that such expenses are the type approved for reimbursement by the Company pursuant to the reimbursement policies and procedures in effect at the time that the expense is incurred.
 
(c)                         With the consent of the Members, any Member or Affiliate of a Member may lend or advance money to the Company. If any Member or Affiliate shall make any loan or loans to the Company or advance money on its behalf, the amount of any such loan or advance shall not be treated as a contribution to the capital of the Company but shall be a debt due from the Company. The amount of any such loan or advance by a Member or Affiliate of a Member shall be repayable solely out of the Company’s assets and shall bear interest at a rate set by the Board of Directors.
 
7.9                                Withdrawal Rights. Unless all of the Class A Members have consented to and approved all of the terms and conditions thereof, no Member shall have right or power to, and each Member covenants that he will not, Withdraw from the Company. Any attempt to Withdraw without such consent shall be null, void and of no force or effect. If any Member Withdraws or attempts to Withdraw from the Company in violation of this Section 7.9 (any such Withdrawal is referred to as an “ Adverse Withdrawal ”):
 
(a)                        Such Member shall have breached this Agreement;
 
(b)                        Such Member shall be liable to the Company and the remaining Members for any and all damages caused by such Adverse Withdrawal, including, without limitation, attorneys’ fees and disbursements incurred in connection therewith (whether at trial, on appeal or otherwise);
 
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(c)                         If the Company is required to, or otherwise elects to recognize, any Adverse Withdrawal, effective as of the date of such Adverse Withdrawal, and without further action on the part of the Company or such Member: (i) the Membership Interest of such Member shall become an Assignee Interest, (ii) such Member shall become a Holder, and (iii) such Member shall not be entitled to receive the fair value of its Membership Interest.
 
7.10                         Appraisal and Dissenters’ Rights. Except to the extent expressly provided in this Agreement, no Member shall have any appraisal rights or dissenters’ rights with respect to his Units, Membership Interest or any other interest in the Company in connection with: (a) any merger, consolidation, other business combination or recapitalization to which the Company is a party; (b) any sale, exchange or other disposition of any assets or properties of the Company; (c) any amendment to any provision of this Agreement; or (d) any other matter, thing or event affecting the Company.
 
7.11                         Issuance of Additional Membership Interests.
 
(a)                        Issuance of Additional Membership Interests to New Members. From time to time, any Person acceptable to the Board of Directors may become a Member in the Company by the issuance by the Company of Additional Membership Interests for such consideration as the Board of Directors shall determine, subject to the terms and conditions of this Agreement.
 
(b)                        Issuance of Additional Membership Interests to Existing Members. From time to time, the Company may issue Additional Membership Interests to one or more existing Members for such consideration as the Board of Directors shall determine, subject to the terms and conditions of this Agreement.
 
(c)                         Part Year Allocations With Respect to New Members. No new Members shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Company. In accordance with the provisions of Section 706(d) of the Code and the Regulations promulgated thereunder, the Board may, at its option, at the time a new Member is admitted, close the Company books (as though the Company’s Fiscal Year had ended) or make pro rata allocations of loss, income and expense deductions to a new Member for that portion of the Company’s Fiscal Year in which a member became a member.
 
ARTICLE 8
MEMBERS’ REPRESENTATIONS AND WARRANTIES
 
8.1                                General Representations and Warranties. As of the date hereof, each Member hereby makes each of the following representations and warranties that are applicable to such Member, and such warranties and representations shall survive the execution and delivery of this Agreement:
 
(a)                        Such Member has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and this Agreement constitutes the legal, valid and binding obligation of such Member.
 
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(b)                        If such Member is a corporation, trust, partnership, limited partnership or limited liability company:
 
(i)                                      It is duly organized or duly formed, validly existing, and in good standing under the laws of the jurisdiction of its incorporation, creation or formation and has the power and authority to own its property and carry on its business as owned and carried on at the date hereof and as contemplated hereby.
 
(ii)                                   It is duly licensed or qualified to do business and in good standing in each of the jurisdictions in which the failure to be so licensed or qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder.
 
(iii)                                The execution, delivery, and performance of this Agreement has been duly authorized by all necessary action and will not conflict with or violate any provisions of the charter, articles of incorporation, bylaws, trust agreement, partnership agreement, articles of organization, certificate of formation or operating agreement of such Member.
 
(c)                         Neither the execution, delivery, and performance of this Agreement nor the consummation by such Member of the transactions contemplated hereby will (i) conflict with, violate, or result in a breach of any of the terms, conditions, or provisions of any law, regulation, order, writ, injunction, decree, determination, or award of any court, any governmental department, board, agency, or instrumentality, domestic or foreign, or any arbitrator, applicable to such Member; (ii) conflict with, violate, result in a breach of, or constitute a default under any of the terms, conditions, or provisions of any material agreement or instrument to which such Member is a party or by which such Member is or may be bound or to which any of its material properties or assets is subject; (iii) conflict with, violate, result in a breach of, constitute a default under (whether with notice or lapse of time or both), accelerate or permit the acceleration of the performance required by, give to others any material interests or rights, or require any consent, authorization, or approval under any indenture, mortgage, lease agreement, or instrument to which such Member is a party or by which such Member is or may be bound; or (iv) result in the creation or imposition of any lien upon any of the material properties or assets of such Member.
 
(d)                        Any registration, declaration or filing with, or consent, approval, license, permit, or other authorization or order by, any governmental or regulatory authority, domestic or foreign, that is required in connection with the valid execution, delivery, acceptance, and performance by such Member under this Agreement or the consummation by such Member of any transaction contemplated hereby has been completed, made, or obtained on or before the effective date of this Agreement.
 
(e)                         There are no actions, suits, proceedings, or investigations pending or, to the knowledge of such Member, threatened against or affecting such Member or any of its properties, assets, or businesses in any court or before or by any governmental department, board, agency, or instrumentality, domestic or foreign, or any arbitrator which could, if adversely determined (or, in the case of an investigation could lead to any action, suit or proceeding, which if adversely determined could) reasonably be expected to materially impair such Member’s ability to perform its obligations under this Agreement or to have a material adverse effect on the
 
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financial condition of such Member; and such Member has not received any currently effective notice of any default, and such Member is not in default, under any applicable order, writ, injunction, decree, permit, determination or award of any court, any governmental department, board, agency, or instrumentality, domestic or foreign, or any arbitrator which could reasonably be expected to materially impair such Member’s ability to perform its obligations under this Agreement or to have a material adverse effect on the consolidated financial condition of such Member.
 
8.2                                Investment Representations. As of the date hereof, each Member hereby makes each of the following representations and warranties with respect to such Member’s investment in the Company, which such representations and warranties shall survive the execution and delivery of this Agreement:
 
(a)                        Such Member’s acquisition of its Membership Interest is being made for its own account for investment, and not with a view to the Transfer, sale or distribution thereof.
 
(b)                        Such Member (i) is acquiring its Membership Interest based upon his own investigation; (ii) agrees that the exercise by such Member of its rights and the performance of its obligations under this Agreement will be based upon its own investigation, analysis, and expertise; (iii) has received all information that such Member deems necessary to make an informed investment decision with respect to an investment in the Company; (iv) has had the unrestricted opportunity to make such investigation as such Member desires pertaining to the Company and an investment therein and to verify information furnished to such Member; and (v) has had the opportunity to ask questions of representatives of the Company and regarding such Member’s investment therein.
 
(c)                         Such Member understands that such Member must bear the economic risk of an investment in the Company for an indefinite period of time because (i) the Membership Interests have not been registered under the Securities Act or any applicable state securities laws; and (ii) pursuant to the terms of this Agreement, there are restrictions on the Transfer of the Membership Interests. Furthermore, such Member understands that the Company is not obligated to register the Membership Interests for resale under the Securities Act or any applicable state securities laws or to provide any Member with information or assistance in complying with any exemption under the Securities Act or any applicable state securities laws.
 
(d)                        Such Member is an accredited investor, as such term is defined under Regulation D promulgated by the Securities Exchange Commission under the Securities Act.
 
ARTICLE 9
OFFICERS
 
9.1                                Officers. The Company shall have a Chief Executive Officer, President and a Secretary and may have such other Officers as the Board of Directors may from time to time deem necessary or advisable. Such other Officers may include, without limitation one or more vice presidents, a chief financial officer, treasurer, a controller and one or more assistant treasurers and assistant secretaries.
 
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9.2                                Power and Authority of Officers. Subject to the terms of this Agreement and in accordance with the policies and directives of the Board of Directors, the day to day management and control of the Company and its business and affairs shall be conducted by, or under the direction of, the Officers. The Officers shall have the duties specified in this Agreement or by the Board of Directors; and the Officers shall have the right, power and authority specified in this Agreement, by the Board of Directors or which are necessary, advisable or convenient to the discharge of their duties.
 
9.3                                Election and Term. The Board of Directors shall elect a Chief Executive Officer, a President and a Secretary, together with such other Officers as the Board of Directors shall determine. Each Officer shall serve at the pleasure of the Board of Directors until his successor is elected and qualified or until his earlier resignation or removal.
 
9.4                                Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Company. As the chief executive officer, but at all times subject to the direction of the Board of Directors, the Chief Executive Officer shall be primarily responsible for the general overall supervision of the business and affairs of the Company and for implementing the policies and directives of the Board of Directors. The Chief Executive Officer shall, when present, preside over all meetings of the Members. The Chief Executive Officer shall have the right, power, authority and responsibility to manage the day to day affairs of the Company in accordance with the policies and directives of the Board of Directors and shall in general perform such other duties as may be assigned by the Board of Directors from time to time.
 
9.5                                President. If there is no separate Chief Executive Officer of the Corporation, then the President shall be the chief executive officer of the Corporation and shall have all the duties and authority given under these Bylaws to the Chief Executive Officer. The President shall otherwise be the chief operating officer of the Corporation and shall perform any and all acts under the direction and supervision of the Chief Executive Officer as the Chief Executive Officer may require in connection with the execution of the general business of the Corporation. The President shall perform such other duties and have such other authority as may from time to time be delegated by the Board of Directors or the Chief Executive Officer. In the absence or disability of the Chief Executive Officer, the President shall perform the duties and exercise the powers of the Chief Executive Officer.
 
9.6                                Secretary. The Secretary shall: (a) maintain the Company’s records including, without limitation the records described in Sections 12.1 and 12.2 hereof; (b) attend all meetings of the Members and record minutes thereof; (c) give, or cause to be given, such Notice as may be required of all meetings of the Members; (d) authenticate records of the Company; and (e) perform such other duties as the Members may from time to time prescribe or delegate.
 
9.7                                Right to Rely on Director, Chief Executive Officer, President or Secretary. Any Person dealing with the Company may rely (without duty of further inquiry) upon a certificate signed by either a Director, the Chief Executive Officer, the President or the Secretary as to: (a) the identity of any Director, Member or Officer; (b) the existence or nonexistence of any fact or facts which constitute a condition precedent to acts by a Member or which are in any other manner germane to the affairs of the Company; (c) the Persons who are authorized to
 
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execute and deliver any instrument or document of the Company; or (d) any act or failure to act by the Company or any other matter whatsoever involving the Company or any Member.
 
9.8                                Standard of Conduct. An Officer shall discharge the duties of his office in good faith, in a manner the Officer reasonably believes to be in the best interest of the Company and with the care an ordinary prudent person in a like position would exercise under similar circumstances. In discharging his duties, an Officer is entitled to rely on information, opinions, reports or statements including financial statements and other financial data, if prepared or presented by one or more of the Officers or employees of the Company whom the Officer reasonably believes to be reliable and competent in the matters presented; or legal counsel, public accountants or other Persons as to matters the Officer reasonably believes are within such Person’s professional or expert competence. An Officer is not acting in good faith who has knowledge concerning the matter in question that makes reliance otherwise permitted by this Section 9.8 unwarranted. An Officer shall not be liable for any action taken as an Officer or any failure to take action, if the Officer has performed the duties of his office in compliance with this provision.
 
9.9                                Resignation and Removal. Any Officer may resign at any time by giving Notice to the Board of Directors. The Officers serve at the pleasure of the Board of Directors; accordingly, any Officer may be removed by the Board of Directors, at any time, with or without cause.
 
9.10                         Vacancies. Any vacancy in any office caused by resignation, removal, death, incompetence or otherwise, shall be filled at such time as the Board of Directors shall determine.
 
9.11                         Compensation. The salaries or other compensation of the Officers shall be fixed from time to time by the Board, and no Officer shall be prevented from receiving such salary or compensation by reason of the fact that he is also a Member.
 
9.12                         Non-Compete, Non-Disclosure, and Non-Solicitation Agreement. Each Officer of the Company shall enter into a Non-Compete, Non-Disclosure and Non-Solicitation Agreement with the Company.
 
ARTICLE 10
CONFLICTS OF INTEREST AND OTHER ACTIVITIES
 
10.1                         Conflict of Interest Transactions.
 
(a)                        A “ Conflict of Interest Transaction ” means a transaction to which the Company is a party and in which a Member has a direct or indirect interest. For purposes of this Section 10.1(a), a Member has an indirect interest in a transaction if, but not only if, another Person in which a Member has a material financial interest or in which a Member is an officer, director, member, manager, general partner or trustee is a party to the transaction. A Conflict of Interest Transaction is not voidable by the Company solely because a Member had a direct or indirect interest therein, if any one (1) of the following is true:
 
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(i)                                      The material facts of the Conflict of Interest Transaction and Member’s interest therein were disclosed or known to all Directors, and the Members (excluding the interested Member) authorized, approved or ratified the Conflict of Interest Transaction;
 
(ii)                                   The Conflict of Interest Transaction was fair to the Company; or
 
(iii)                                The Conflict of Interest Transaction was of a nature that the conflict of interest is waived by this Agreement.
 
(b)                        No Member violates a duty or obligation to the Company merely because the conduct of such Member furthers the interest of such Member. To the extent that any Member lends money to or transacts other business with the Company, the rights and obligations of such Member shall be the same as those of a Person who is not a Member.
 
10.2                         Independent Activities; Confidentiality of Information. Except as otherwise provided in this ARTICLE 10, each Member may engage in whatever activities he chooses, without any obligation to offer any interest in such activities to the Company or any Member; provided, however that each Member covenants that for so long as he is a Member and thereafter, he will not disclose to any other Person any confidential information, except for disclosures to Members, Officers, key employees, independent accountants and attorneys of the Company as may be necessary or appropriate in the performance of a Member’s duties hereunder. For purposes of this Agreement, the term “ confidential information ” means and includes any and all non-public and proprietary information regarding the assets, liabilities, operations, business, affairs, financing, services, products and trade secrets of the Company, any of its Affiliates or any of their respective officers, directors, shareholders, partners, members, employees or agents. The term “confidential information” shall include, without limitation, all financial statements, financial information, projections, forecasts, business plans, methods, ideas, concepts, materials, documents, records, computer programs, customer lists, referral sources, work, models, processes, designs, drawings, plans, inventions, devices, parts, improvements, other physical and intellectual property or other information in any form whatsoever; provided, however, the term “confidential information” shall not include any information which (i) was in the possession of a Member prior to the date he became a Member; (ii) becomes generally available to the public, other than as the result of a disclosure made by the Member or his agents, attorneys, representatives or advisors; or (iii) becomes available on a non-confidential basis from a source other than the Company.
 
ARTICLE 11
INDEMNIFICATION
 
11.1                         Indemnification of Members and Officers.
 
(a)                        Except as otherwise prohibited by the Articles or applicable law, the Company shall indemnify any Person who was or is 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 by or in the right of the Company), by reason of the fact that such Person is or was a Member, Director, Officer, employee, representative or agent of the Company, or is or was serving at the request of the Company as a director, officer, manager, partner, trustee, employee, representative or agent of another
 
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corporation, limited liability company, general partnership, limited partnership, joint venture, trust, business trust, employee benefit plan or other enterprise or entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Person in connection with such action, suit or proceeding if such Person acted in good faith and in a manner he reasonably believed to be in or, where not acting in his official capacity with the Company, not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such Person did not meet the standards of conduct set forth in this Section 11.1.
 
(b)                        Except as otherwise prohibited by the Articles or applicable law, the Company shall indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Person is or was a Member, Director, Officer, employee, representative or agent of the Company, or is or was serving at the request of the Company as a director, officer, manager, partner, trustee, employee, representative or agent of another corporation, limited liability company, general partnership, limited partnership, joint venture, trust, business trust, employee benefit plan or other enterprise or entity, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if such Person acted in good faith and in a manner he reasonably believed to be in or, where not acting in his official capacity with the Company, not opposed to the best interests of the Company, except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person shall have been adjudged to be liable to the Company.
 
(c)                         To the extent that a Member, Director or Officer has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 11.1(a)  hereof, or in defense of any claim, issue or matter therein, such Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
 
(d)                        Any indemnification under Sections 11.1(a)  and 11.1(b)  hereof (unless ordered by a court of competent jurisdiction) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Member, Director or Officer is proper in the circumstances because such Person has met the applicable standard of conduct set forth herein. Any determination respecting the authorization to indemnify any Person shall be made by the Members who are not a party to the action, suit or proceeding in question (or have been wholly successful on the merits with respect thereto); provided, however, upon the request of any or Member such determination shall be made by independent special legal counsel selected by the Members (in which vote any Member who is a party to such action, suit or proceeding may participate).
 
(e)                         Evaluation as to the reasonableness of expenses shall be made by the Members not at the time parties to such action, suit or proceeding; provided, however, if the Members who are not parties to such action, suit or proceeding do not constitute a quorum, evaluation as to the
 
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reasonableness of expenses shall be made by the independent special legal counsel selected as provided in Section 11.1(d) hereof or the Board.
 
(f)                          Expenses (including attorneys’ fees) incurred by a Member or Director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon (i) written affirmation by such Person of his good faith belief that he met the standards of conduct set forth herein, (ii) receipt of an undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company pursuant to this Section 11.1 , and (iii) a determination that the facts then known to those making the determination would not preclude indemnification under this Section  11.1 . Such expenses (including attorneys’ fees) incurred by Officers who are not Members, shall be so paid upon such terms and conditions, if any, as the Members deem appropriate.
 
(g)                         The indemnification and advancement of expenses authorized by, or granted pursuant to, this Section 11.1 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any statute, rule of law, the Articles, agreement, vote of disinterested Members or otherwise, both as to actions in an official capacity and as to actions in another capacity while holding such office; provided, however, no indemnification may be made to or on behalf of any Person if a judgment or other final adjudication adverse to such Person establishes such Person’s liability for acts or omissions not in good faith or which involve fraud, intentional misconduct or a knowing violation of law.
 
(h)                        For purposes of this Section 11.1 , any reference to the “Company” shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, governors, managers, members, employees, representatives or agents, so that any Person who is or was a director, officer, manager, member, employee, representative or agent of such constituent entity, or is or was serving at the request of such constituent entity as a director, officer, manager, employee, representative or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section 11.1 with respect to the resulting or surviving entity as he or she would have with respect to such constituent entity if its separate existence had continued.
 
(i)                            The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 11.1 shall continue as to a Person who has ceased to be a Member, Director, Officer, employee, representative or agent and shall inure to the benefit of the Personal Representative of such Person.
 
(j)                           Notwithstanding anything in this ARTICLE, 11 to the contrary, the Company will not have the obligation to indemnify any Person with respect to proceedings, claims or actions initiated or brought voluntarily by such Person and not by way of defense.
 
11.2                         Indemnification of Others . If the Members determine that it is in the best interest of the Company to do so, the Company may indemnify any Person in its employ who is not a Member, Director or Officer to the same extent as a Member, Director or Officer.
 
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11.3                         Contractual Indemnification. The Company shall also have the power to contract with any individual Member, Director, Officer, employee or agent for any additional indemnification the Members determine to be appropriate.
 
11.4                         Insurance. The Company may purchase and maintain insurance on behalf of a Person in that Person’s official capacity against any liability asserted against and incurred by the Person in or arising from that capacity, whether or not the Company would have been required to indemnify the Person against the liability under the provisions of this ARTICLE 11 .
 
ARTICLE 12
FISCAL MATTERS; BOOKS AND RECORDS
 
12.1                         Books and Records. The Company shall maintain at its principal executive office, or at such other place or places as designated from time to time by the Members separate books of account for the Company which shall show a true and accurate record of all assets and liabilities, costs and expenses incurred, all charges and expenditures made, all credits made and received, and all income derived in connection with the operation of the Company’s business in accordance with GAAP consistently applied or on the basis of accounting utilized by the Company for federal income tax purposes. The expenses and expenditures chargeable to the Company shall include only those which are reasonable and necessary for the ordinary and efficient operation of the Company’s business and the performance of the obligations of the Company under any agreements relating to the business of the Company. Each Member shall, at his sole expense, have the right, at any time upon not less than five (5) days prior Notice to examine, copy, and audit the Company’s books and records during normal business hours. The Company shall furnish a list of the name, address and Membership Interest held by each Member to any Member who requests such list in writing for any proper purpose, and the cost of furnishing such list shall be borne by the requesting Member.
 
12.2                         Additional Records. In addition, the following records shall be kept and maintained at the principal place of business of the Company:
 
(a)                        A current list of the full name and address of each Member, together with the number of Units held by each Member;
 
(b)                        A current list of the full name and last known business, residence or mailing address of each Holder and the Assignee Interest held by such Holder;
 
(c)                         A copy of the Articles and all amendments thereto;
 
(d)                        A copy of this Agreement and all amendments hereto;
 
(e)                         Copies of the Company’s income tax returns for the three (3) most recent years;
 
(f)                          Copies of any writings permitted or required under the Act regarding the obligation of a Member to perform any enforceable promise to contribute cash or property or to perform services as consideration for his Capital Contribution;
 
(g)                         Any written consents obtained from the Members;
 
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(h)                        Minutes or other records of meetings, if any, of the Members; and
 
(i)                            Any other information required to be kept by the Act.
 
12.3                         Reports. The Chief Executive Officer (or any other Officer designated by the Members) shall be responsible for the preparation of financial reports of the Company and the coordination of financial matters of the Company with the Company’s accountants.
 
(a)                        The Chief Executive Officer shall cause any annual reports required in accordance with the laws of any state in which the Company conducts business to be prepared and timely filed.
 
(b)                        As soon as available but in any event within one hundred and twenty (120) days after the end of each Fiscal Year of the Company, the Company shall provide to each Member an audited balance sheet of the Company as at the end of such Fiscal Year, audited statements of income and cash flows of the Company for such year, and an audited statement of the Members’ Capital Accounts and changes therein for such Fiscal Year, each prepared in accordance with GAAP consistently applied and setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and audited by independent certified public accountant selected by the Board. Such financial statements shall be accompanied by (i) an unqualified opinion of such accounting firm, and (ii) if requested by the Board, a certificate from such accounting firm, addressed to the Board, stating that in the course of its examination, nothing came to its attention that caused it to believe that there was any default by the Company in the fulfillment of or compliance with any of the terms, covenants, provisions or conditions of this Agreement or any other material agreement to which the Company is a party. The Company shall also furnish a Company prepared comparison to the Business Plan for such year.
 
12.4                         Other Information. In addition to the reports described in Section 12.3, the Company shall deliver to the Class A Members the following:
 
(a)                        Monthly Financial Statements. As soon as available, but in any event within twenty (20) days after the end of each month, an unaudited balance sheet of the Company as at the end of such month and unaudited statements of income and cash flows of the Company for such month and for the current Fiscal Year of the Company to date, together with a comparison of such statements to the corresponding periods of the prior Fiscal Year, the Company’s then current Business Plan and a brief narrative of the results of operations for such month.
 
(b)                        Certificate. With respect to the financial statements called for in Section 12.4(a) , a certificate executed by the chief financial officer or Chief Executive Officer of the Company certifying that, to the knowledge of such officer, such statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and such financials fairly present the financial condition of the Company and its results of operation at the date and for the periods specified, subject to year-end audit adjustments.
 
(c)                         Business Plan. As soon as practicable, but in any event not less than forty-five (45) days prior to the end of each Fiscal Year, an updated three-year Business Plan, and, as soon
 
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as prepared, any other budgets or revised budgets and operating or business plans prepared by the Company and submitted to the Board.
 
(d)                        Auditor Letters. Promptly on receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the operations and financial affairs given to the Company by its independent accounting firm.
 
(e)                         Senior Creditor Notices. Within five (5) days of receipt thereof, copies of any or all written notices or information received from Company’s Senior Creditor(s).
 
(f)                          Requested Information. With reasonable promptness (and in any event within five (5) days of the request), such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company as from time to time may be reasonably requested, including, without limitation, monthly budgets, summaries of financial plans, all information necessary for the Class A Members to prepare and file their respective economic impact statements on SBA Form 468, and any other information requested or required by any governmental agency asserting jurisdiction over any Class A Member. In addition to any other rights granted hereunder, the Company shall grant the Class A Members and the United States Small Business Administration access to the Company’s books and records for the purpose of verifying the use of proceeds to the extent required in Section 107.620 of Title 13 of the United States Code of Federal Regulations.
 
12.5                         Tax Returns. The Chief Executive Officer shall cause the Company’s accountants to prepare all income and other tax returns of the Company and shall cause the same to be timely filed.
 
12.6                         Special Basis Adjustment. In connection with any Permitted Transfer, the Members may, or at the written request of the transferee shall, on behalf of the Company and at the time and in the manner provided in §1.754-1(b) of the Regulations, to make an election to adjust the basis of the Company Property in the manner provided in §§734(b) and 743(b) of the Code. Such transferee shall pay all costs incurred by the Company in connection therewith, including, without limitation, the reasonable fees and disbursements of the Company’s attorneys and accountants.
 
12.7                         Tax Matters Member. CGP is hereby designated as and shall serve as the “Tax Matters Member” (as used herein, such term shall have the same meaning as the term “tax matters partner” under §6231(a)(7) of the Code) until his earlier resignation or removal. The Tax Matters Member shall have all powers and responsibilities provided in §§6222 through 6231 of the Code; provided, however, the Tax Matters Member shall not compromise any dispute with the Internal Revenue Service without the approval of the Members. The Tax Matters Member shall keep all Members informed of all significant matters and notices that may come to his attention in his capacity as Tax Matters Member from government taxing authorities which may come to the attention of the Tax Matters Member by giving Notice thereof within ten (10) days after becoming aware thereof and, within such time, shall forward to each Member copies of all significant written communications he may receive in such capacity. The Company shall pay and be responsible for all reasonable third party costs and expenses incurred by the Tax Matters Member in performing his duties. A Member shall be responsible for any costs incurred by the
 
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Member with respect to any tax audit or tax-related administrative or judicial proceeding against any Member, even though it relates to the Company. Unless the Members otherwise determine, the Tax Matters Member shall be the party designated to receive all notices from the Internal Revenue Service which pertain to the tax affairs of the Company.
 
(a)                        The Tax Matters Member may resign at any time by giving Notice to the Members of the Company; provided, however, any resignation shall not become effective until the first to occur of: (a) the Members have named a successor to the Tax Matters Member in accordance with the terms of this Agreement, or (b) thirty (30) days following delivery of the Notice of resignation.
 
(b)                        The Tax Matters Member serves at the pleasure of the Board of Directors, and may be removed by the Board of Directors at any time, with or without cause.
 
12.8                         Bank Accounts. All funds of the Company shall be deposited by the Company at one or more financial institutions approved by the Board of Directors. Withdrawals shall be made only on such signature or signatures as the Board shall from time to time determine; and funds shall be withdrawn only to be invested in furtherance of the Company’s business, to pay Company debts or obligations or to be distributed to the Members in accordance with this Agreement. The funds of the Company shall not be commingled with the funds of any other Person.
 
12.9                         Accounting Decisions. Except as otherwise expressly provided in this Agreement, all decisions as to accounting matters shall be made by the Board of Directors.
 
ARTICLE 13
TRANSFER OF MEMBERSHIP INTERESTS
 
13.1                         Restriction on Transfers. Except as otherwise expressly permitted or required by this Agreement, no Member may Transfer or offer to Transfer all, or any portion of, or any interest or rights in, the Membership Interest Rights owned by the Member, and no Holder may Transfer all, or any portion of, or any interest or rights in, any Assignee Interest held by such Holder. Each Member acknowledges the reasonableness of the restrictions on Transfer imposed by this Agreement in view of the Company purposes and the relationship of the Members.
 
13.2                         Certain Permitted Transfers. Subject to the conditions and restrictions set forth in Section 13.2(b)  hereof, a Member may at any time Transfer his Membership Interest as follows, and the provisions of Sections 13.1 , 13.4 and 13.11 hereof shall not apply to any such Transfer:
 
(a)                        All or any portion of his Membership Interest including, without limitation, the Financial Rights and Governance Rights to the Company or any other Member.
 
(b)                        An Assignee Interest to: (i) any member of the transferor’s immediate family, (ii) any Affiliate of the transferor (iii) the transferor’s Personal Representative to whom such Assignee Interest is transferred at death or involuntarily by operation of law; or (iv) any purchaser under the provisions of Section 13.4 hereof. Any such transferee shall become a Holder. The Transfer of an Assignee Interest shall not allow the transferee to exercise or
 
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otherwise control the transferor’s Governance Rights, and any attempt to do so shall be null and void and of no force or effect.
 
13.3                         Conditions to Permitted Transfers. A Transfer shall not be treated as a Permitted Transfer under this Agreement unless and until the following conditions are satisfied:
 
(a)                        Except in the case of a Transfer of a Membership Interest at death or involuntarily by operation of law, the transferor and transferee shall execute and deliver to the Company such documents and instruments of conveyance as the Company and its counsel may deem necessary or appropriate to effect such Transfer and to confirm the agreement of the transferee to be bound by the provisions of this Agreement including this ARTICLE 13 . In any case not described in the preceding sentence, the Transfer shall be confirmed by presentation to the Company of legal evidence of such Transfer, in form and substance satisfactory to counsel to the Company.
 
(b)                        The transferor and transferee shall furnish to the Company the transferee’s taxpayer identification number, sufficient information to determine the transferee’s initial tax basis in the Membership Interest transferred, and any other information reasonably necessary to permit the Company to file all required federal and state tax returns and other legally required information, statements or returns. The Company shall not be required to make any distribution otherwise provided for in this Agreement with respect to any transferred Membership Interest until it has received such information.
 
(c)                         Except in the case of a Transfer at death or involuntarily by operation of law, either (i) such Membership Interest shall be registered under the Securities Act, as amended, and any applicable state securities laws, or (ii) the transferor shall, if required by the Company or its counsel, provide evidence satisfactory to the Company and its counsel that such Transfer is exempt from all applicable registration requirements and will not violate any applicable laws regulating the Transfer of securities.
 
(d)                        The transferor and/or the transferee reimburse the Company for all costs and expenses that it reasonably incurs in connection with such Transfer.
 
13.4                         Right of First Refusal. In addition to the other limitations and restrictions set forth in this ARTICLE 13 , except as expressly permitted by Section 13.2 hereof, no Person (whether such Person is a Member or a Holder who holds only an Assignee Interest) shall sell or similarly dispose of all or any portion of his Membership Interest or Assignee Interest unless such Member first offers to sell such Membership Interest strictly in accordance with the terms and conditions set forth in this Section 13.4 and Section 13.11 .
 
(a)                        As used in this Section 13.4 , the following terms shall have the following meanings:
 
(i)                                      “ Company Option Period ” means the period ending at 5:00 p.m. (local time at the Company’s principal executive office) on the first Business Day following the expiration of fifteen (15) days from the date of the Option Notice.
 
(ii)                                   “ Free Transfer Period ” means the period ending at 5:00 p.m. (local time at the Company’s principal executive office) on the first Business Day following the
 
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expiration of ninety (90) days from the expiration of the Offeree Option Period (as defined in (v) below).
 
(iii)                                “ Offered Interest ” means that portion of the Membership Interest or Assignee Interest that the Selling Member desires to sell and with respect to which a Purchase Offer has been received. The Offered Interest may be all or any portion of the Membership Interest or Assignee Interest then held by the Selling Member.
 
(iv)                               “ Offeree Members ” means all Class A Members other than the Selling Member.
 
(v)                                  “O fferee Option Period ” means the period beginning on the first Business Day following the expiration of the Company Option Period and ending at 5:00 p.m. on the fifteenth (15 th ) day thereafter.
 
(vi)                               “ Option Notice ” means the Notice from the Selling Member to the Company and the Offeree Members, which shall include: (A) a true and complete copy of the Purchase Offer; (B) evidence that the Proposed Purchaser is not an Affiliate of or otherwise related to the Selling Member; and (C) evidence of the financial capacity of the Proposed Purchaser to immediately consummate the Purchase Offer.
 
(vii)                            “ Option Price ” means the purchase price to be paid for the Offered Interest denominated and payable in United States dollars at closing or according to the terms specified in the Purchase Offer; provided, however, neither the Company nor the Offeree members shall be obligated (whether or not required of the Proposed Purchaser under the terms of the Purchase Offer) to: (A) make any earnest money or similar deposit prior to closing; (B) provide any security (other than the Offered Interest) for any deferred portion of the Option Price; or (C) pay, provide or deliver any consideration other than cash or a promissory note.
 
(viii)                         “ Proposed Purchaser ” means the Person making the Purchase Offer.
 
(ix)                               “ Purchase Offer ” means a bona fide offer to purchase the Offered Interest that satisfies the requirements set forth in Section 13.4(b)  hereof.
 
(x)                                  “ Purchase Option ” has the meaning set forth in Section 13.4(c)  hereof.
 
(xi)                               “ Selling Member ” means the Member or Holder desiring to sell or similarly dispose of all or any portion of his Membership Interest or Assignee Interest.
 
(b)                        No Transfer may be made pursuant to this Section 13.4 unless the Selling Member has received a Purchase Offer; and any such Purchase Offer must be (i) in writing, and (ii) signed by the Proposed Purchaser.
 
(c)                         Prior to making any Transfer that is subject to the terms of this Section 13.4 , the Selling Member shall deliver the Option Notice to the Company and each Offeree Member, and the Company and the Offeree Members (in the event the Company does not exercise its right of refusal hereunder) shall have the option (the “ Purchase Option ”) to purchase all (but not less than
 
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all) of the Offered Interest for the Option Price. The Company may exercise the Purchase Option by delivering Notice of exercise (such Notice shall be irrevocable) to the Selling Member and each Offeree Member at any time prior to the expiration of the Option Period. The determination by the Company concerning the exercise of the Purchase Option shall be made by the Board of Directors. In the event the Company does not exercise its Purchase Option within the Company Option Period, the Offeree Members may exercise their Purchase Option on a prorata basis before the expiration of the Offeree Option Period. Each Offeree Member shall have the additional right to purchase any of the Offered Interest not accepted for purchase by any other Offeree Member(s), in which event such Offered Interest not accepted by such other Offeree Members shall be deemed to have been offered to and accepted by the Offeree Member(s) exercising such additional right (“ Electing Member(s) ”) under this paragraph (c) prorata, based on the relative Percentage Interest in Class A Membership Interests held by such Electing Member(s) (determined without regard to the Offeree Member(s) not electing to purchase their full respective Proportionate Percentages) on the same terms and conditions as those specified above.
 
(d)                        In the event that the Purchase Option is exercised, the closing of the sale of the Offered Interest shall take place within thirty (30) days after the expiration of the Company Option Period or Offeree Option Period (as applicable). The Selling Member and the Company (or the Offeree Members) shall execute such documents and instruments as may be necessary or appropriate to effect the sale of the Offered Interest pursuant to the terms of the Purchase Offer and this ARTICLE 13.
 
(e)                         If neither the Company nor the Offeree Members exercise the Purchase Option, the Selling Member may sell the Offered Interest to the Proposed Purchaser at any time within the Free Transfer Period without obtaining the consent of any other Member; provided, however, such sale (i) shall be made on terms no more favorable to the Proposed Purchaser than the terms contained in the Purchase Offer; and (ii) shall comply with all other terms, conditions, and restrictions of this Agreement that are applicable to sales of Membership Interests and are not expressly made inapplicable to sales occurring under this Section 13.4 . Any sale or similar disposition of the Offered Interest made after the expiration of the Free Transfer Period shall again become subject to all of the conditions and restrictions of this Section 13.4 .
 
13.5                         Effect of Prohibited Transfers.
 
(a)                        Any purported Transfer of a Membership Interest or Assignee Interest that is not a Permitted Transfer shall be null and void and of no effect whatever; provided, however, if the Company is required to recognize a Transfer that is not a Permitted Transfer (or if the Company, in its sole discretion, elects to recognize a Transfer that is not a Permitted Transfer), the Membership Interest Transferred shall be strictly limited to an Assignee Interest. Further, the allocations and distributions provided by this Agreement with respect to such Assignee Interest may be applied (without limiting any other legal or equitable rights of the Company) to satisfy any debts, obligations, or liabilities for damages that the transferor or transferee of such Membership Interest or Assignee Interest may have to the Company.
 
(b)                        In the case of a Transfer or attempted Transfer of a Membership Interest or Assignee Interest that is not a Permitted Transfer, the parties engaging or attempting to engage in
 
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such Transfer shall be liable to indemnify and hold harmless the Company and the other Members from all cost, liability, and damage that any of such indemnified Persons may incur (including, without limitation, incremental tax liability and attorneys fees and expenses) as a result of such Transfer or attempted Transfer and efforts to enforce the indemnity granted hereby.
 
13.6                         Rights of Unadmitted Transferees. The transferee of all or any portion of a Membership Interest or Assignee Interest who is not admitted as a Substitute Member pursuant to Section 13.7 hereof is a Holder, and the Transferred Membership Interest is an Assignee Interest. Notwithstanding the foregoing, if the transferee of a Membership Interest is a Member and the Transfer was a Permitted Transfer, such transferee shall receive and shall be entitled to exercise all of the Governance Rights incident to the Transferred Membership Interest, and none of the restrictions and limitations set forth in this Section 13.6 shall apply to such transferee.
 
13.7                         Admission of Transferees as Members. Subject to the other provisions of this ARTICLE 13, a transferee of a Membership Interest or Assignee Interest may be admitted to the Company as a Substitute Member only upon satisfaction of the conditions set forth below in this Section 13.7 :
 
(a)                        A majority vote by the Board of Directors in favor of such admission;
 
(b)                        The Membership Interest or Assignee Interest with respect to which the transferee is being admitted was acquired by means of a Permitted Transfer;
 
(c)                         The transferee becomes a party to this Agreement as a Member and executes such documents and instruments as the Company may reasonably request and as may be necessary or appropriate to confirm such transferee as a Member in the Company and such transferee’s agreement to be bound by the terms and conditions hereof;
 
(d)                        The transferee pays or reimburses the Company for all reasonable legal, filing, and other costs that the Company incurs in connection with the admission of the transferee as a Member with respect to the Transferred Membership Interest or Assignee Interest; and
 
(e)                         If the transferee is not an individual of legal majority, the transferee provides to the Company evidence satisfactory to the Company and its counsel of the authority of the transferee to become a Member and to be bound by the terms and conditions of this Agreement.
 
13.8                         Distributions and Allocations. If any Membership Interest is sold, assigned, or Transferred during any accounting period in compliance with the provisions of this ARTICLE 13, Profits, Losses, each item thereof, and all other items attributable to such Membership Interest for such period shall be divided and allocated between the transferor and the transferee by taking into account their varying interests during the period in accordance with §706(d) of the Code, using any conventions permitted by law and selected by the Members. All distributions on or before the date of such Transfer shall be made to the transferor, and all distributions thereafter shall be made to the transferee. Solely for purposes of making such allocations and distributions, the Company shall recognize such Transfer not later than the end of the calendar month during which it is given Notice of such transfer; provided, however, if the Company does not receive a Notice stating the date such Membership Interest was Transferred and such other information as the Company may
 
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reasonably require within thirty (30) days after the end of the accounting period during which the Transfer occurs, then all of such items shall be allocated, and all distributions shall be made, to the Person who, according to the books and records of the Company, on the last day of the accounting period during which the Transfer occurs, was the owner of the Membership Interest. The Company shall not incur any liability for making allocations and distributions in accordance with the provisions of this Section 13.9 , whether or not the Company has knowledge of any Transfer of ownership of any Membership Interest.
 
13.9                         Class  A Member Preemptive Rights.
 
(a)                        If the Company shall propose to issue and sell or enter into any Contract relating to the issuance or sale of any Securities (the “ Additional Securities ”) to any Person, each Class A Member shall have the right to purchase that number of Additional Securities at the same price and on the same other terms proposed to be issued and sold so that each such Class A Member would, in the aggregate, after the issuance or sale of all of such Additional Securities have the same Percentage Interest in the subordinated debt or equity, as applicable of the Company as such Member had immediately prior to such issuance and sale (the “ Proportionate Percentage ”).
 
(b)                        The Company shall offer to sell to each Class A Member its Proportionate Percentage of such Additional Securities and to sell to each such Class A Member such of the Additional Securities as shall not have been subscribed for by the other Class A Members as hereinafter provided, at the price and on the terms described above, which shall be specified by the Company in a written notice delivered to each such Class A Member (the “ Preemptive Offer ”). The Preemptive Offer shall by its terms remain open for a period of at least thirty (30) days from the date of receipt thereof and shall specify the date on which the Additional Securities will be sold to accepting Class A Members (which shall be at least thirty (30) but not more than one hundred and eighty (180) days from the date of the Preemptive Offer).
 
(c)                         Each Class A Member shall have the right, during the period of the Preemptive Offer to purchase any or all of its Proportionate Percentage of the Additional Securities at the purchase price and on the terms stated in the Preemptive Offer. Notice by any such Member of its acceptance, in whole or in part, of a Preemptive Offer shall be in writing (a “ Notice of Acceptance ”) signed by such Member and delivered to the Company prior to the end of the specified period of the Preemptive Offer, setting forth the Additional Securities such Class A Member elects to purchase.
 
(d)                        Each Class A Member shall have the additional right to offer in its Notice of Acceptance to purchase any of the Additional Securities not accepted for purchase by any other Class A Members, in which event such Additional Securities not accepted by such other Class A Members shall be deemed to have been offered to and accepted by the Class A Members exercising such additional right under this paragraph (d) pro rata in accordance with their respective Proportionate Percentages (determined without regard to the Class B Members and those Class A Members not electing to purchase their full respective Proportionate Percentages under the foregoing paragraph (c)) on the same terms and conditions as those specified in the Preemptive Offer, but in no event shall any such electing Class A Member be allocated a number of Additional Securities in excess of the maximum number of Additional Securities such Class A Member has elected to purchase in its Notice of Acceptance.
 
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(e)                         In the case of any Preemptive Offer, if Notices of Acceptance given by the Class A Members do not cover in the aggregate all of the Additional Securities, the Company may during the period of one hundred and eighty (180) days following the date of expiration of such Preemptive Offer sell to any other Person or Persons all or any part of the Additional Securities not covered by a Notice of Acceptance, but only on terms and conditions that are no more favorable to such Person or Persons or less favorable to the Company than those set forth in the Preemptive Offer.
 
13.10                  Class A Member Tag-Along Rights.
 
(a)                        If any Offered Interest subject to a Transfer is not purchased pursuant to the Right of First Refusal set forth in Section 13.4 above (the “ Right of First Refusal ”) and thereafter is to be sold to a Proposed Purchaser, each Offeree Member may elect to exercise its Right of Co-Sale and participate on a pro rata basis in the Transfer (the “ Co-Sale Transfer ”) to the Proposed Purchaser as set forth in this Section 13.11 on the same terms and conditions specified in the Option Notice. Each Offeree Member who desires to exercise its Right of Co-Sale must give the Selling Member written notice to that effect (the “ Co-Sale Notice ”) prior to the expiration of the Offeree Option Period described above, and upon giving such notice each such Offeree Member shall be deemed to have effectively exercised the right of co-sale.
 
(b)                        Each Offeree Member who timely exercises such Offeree Member’s Right of Co-Sale by delivering the Co-Sale Notice (the “ Co-Sale Participants ”) may include in the Co-Sale Transfer all or any part of such Member’s Units equal to the product obtained by multiplying (i) the aggregate number of Units subject to the Co-Sale Transfer (excluding Units purchased by the Company or the Offeree Members pursuant to the Right of First Refusal) by (ii) a fraction, the numerator of which is the number of Units owned by such Co-Sale Participant immediately before consummation of the Co-Sale Transfer and the denominator of which is the total number of Units owned, in the aggregate, by all Offeree Members immediately prior to the consummation of the Co-Sale Transfer (including any Units that the Offeree Members have collectively agreed to purchase pursuant to the Right of First Refusal), plus the number of Units held by the Selling Members. To the extent one or more of the Offeree Members exercise such right of participation in accordance with the terms and conditions set forth herein, the number of Units that the Selling members may sell in the Co-Sale Transfer shall be correspondingly reduced.
 
(c)                         The parties hereby agree that the terms and conditions of any sale pursuant to this Section 13.11 will be memorialized in, and governed by, a written purchase and sale agreement with customary terms and provisions for such a transaction and the parties further covenant and agree to enter into such an agreement as a condition precedent to any sale or other transfer pursuant to this Section 13.11 ; provided that any indemnification provided by the Co-Sale Participants to the Proposed Purchaser shall be made pro rata in proportion to the sale proceeds received by each seller in connection with the Co-Sale Transfer (except in the case of indemnifications arising as a result of a breach of a representation or warranty relating specifically to a particular seller, which shall be borne solely by such seller); provided further that in no event shall the indemnification obligations of any Co-Sale Participant exceed the amount of proceeds received by such Co-Sale Participant in such Co-Sale Transfer.
 
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(d)                        If any Proposed Purchaser refuses to purchase securities subject to the Right of Co-Sale from any Co-Sale Participant exercising its Right of Co-Sale hereunder, no Selling Member may sell any Units to such Proposed Purchaser unless and until, simultaneously with such sale, such Selling Member purchases all securities subject to the Right of Co-Sale from such Co-Sale Participant on the same terms and conditions (including the proposed purchase price) as set forth in the Option Notice.
 
(e)                         At the closing of any such proposed Co-Sale Transfer, the Selling Member and the Co-Sale Participants shall deliver to the Proposed Purchaser (A) such instruments of transfer as shall be requested by the Proposed Purchaser with respect to the Units or other Securities of the Company to be Transferred, against receipt of the purchase price therefor and (B) such Members’ Units or other Securities, free and clear of any Liens and such Member shall so represent and warrant. At the closing of any proposed Co-Sale Transfer, the Proposed Purchaser shall deliver payment (in full in immediately available funds) for the Units and other Securities purchased by such Proposed Purchaser. If the closing of any Co-Sale Transfer does not occur within one hundred and twenty (120) days after the date of the Option Notice with respect thereto, or if the actual terms and conditions of the Co-Sale Transfer are not substantially identical to those set forth in the Option Notice, the Co-Sale Participants shall be entitled to revoke the Co-Sale Notice, in which event any subsequent Transfer of Units by such Selling Member shall once again become subject to the provisions of Section 13.4 and this Section 13.11 .
 
(f)                          The exercise or non-exercise of the rights of a Class A Member hereunder to participate in one or more sales of Units made by a Selling Member shall not adversely affect a Class A Member’s right to participate in subsequent sales of Units.
 
13.11                  Drag-Along Rights. If the holders of seventy-five percent (75%) of the Class A Membership Interests approve:
 
(a)                        a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from the Members seventy-five percent (75%) or more of the Units, or
 
(b)                        a transaction that qualifies as a liquidation, dissolution, or winding up of the Company, or
 
(c)                         a transaction or series of related transactions in which a person, or a group of related Persons, acquires substantially all the assets of the Company,
 
(such events described in subsections (a), (b) and (c) are referred to in this Agreement as a “ Sale of the Company ”), then each Member hereby agrees with respect to all Units that he, she or it holds and any other Company securities over which he, she or it otherwise exercises dispositive power:
 
(i)                            if such transaction requires the approval of Members, (x) if the matter is to be brought to a vote at a Member meeting, after receiving notice of any meeting of Members of the Company to vote on the approval of a Sale of the Company, to be present, in person or by proxy, as a holder of Units, at all such meetings and be counted
 
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for the purposes of determining the presence of a quorum at such meetings; and (y) to vote (in person, by proxy or by action by written consent, as applicable) all Units in favor of such Sale of the Company and in opposition of any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
 
(ii)                         if the Sale of the Company is to be effected by the sale of Units held by the holders of seventy-five percent (75%) or more of the outstanding Units (the “ Selling Members ”) without the need for Member approval, each Member agrees to sell all Units beneficially held by such Member (or in the event that the Selling Members are selling fewer than all of their Units, Units in the same proportion as the Selling Members are selling) to the person to whom the Selling Members propose to sell their shares, for the same per-share consideration (on an as-exercised basis) and on the same terms and conditions as the Selling Members;
 
(iii)                      to refrain from exercising any dissenters’ rights or rights of appraisal, if any, under applicable law at any time with respect to such Sale of the Company;
 
(iv)                     to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company; and
 
(v)                        not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Units owned by such party or Affiliate in a voting trust or subject any such Units to any arrangement or agreement with respect to the voting of such Units, unless specifically requested to do so by the acquirer in connection with a Sale of the Company.
 
ARTICLE 14
RETIRING EVENTS; PURCHASE UPON TERMINATION OF EMPLOYMENT OF CLASS B MEMBER
 
14.1                         Certain Definitions. As used in this ARTICLE 14 , the following terms shall have the following meanings:
 
(a)                        “ Net Equity ” has the meaning set forth in Section 14.4 hereof.
 
(b)                        “ Permitted Withdrawal ” means a Withdrawal that is approved by a Majority Vote of the Members.
 
(c)                         “ Retiring Event ” means, with respect to any Member:
 
(i)                            the Bankruptcy of such Member;
 
(ii)                         the Permitted Withdrawal of a Member;
 
(iii)                      the Adverse Withdrawal of a Member;
 
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(iv)                     if the Member is an individual, the Member’s death or adjudication by a court of competent jurisdiction as incompetent to manage the Member’s person or property;
 
(v)                        if the Member is a partnership or limited liability company, the dissolution and commencement of winding up of the partnership or limited liability company;
 
(vi)                     if the Member is a corporation, the dissolution of the corporation or the revocation of its charter or articles of incorporation;
 
(vii)                  if the Member is acting as a Member by virtue of being a trustee of a trust, the termination of the trust; or
 
(viii)               if the Member is an estate, the distribution by the fiduciary of the estate’s entire interest in the limited liability company.
 
(d)                        “ Retiring Event Option Term ” means the period ending at 5:00 p.m. (local time at the Company’s principal executive office) on the first Business Day following the expiration of ninety (90) days from the date on which the Retiring Event that gives rise to the Retiring Event Purchase Option occurred.
 
(e)                         “ Retiring Event Purchase Option” has the meaning set forth in Section 14.2 hereof.
 
(f)                          “ Retiring Member ” means the Member with respect to whom a Retiring Event occurs or his Personal Representative, as applicable.
 
14.2                         Option to Purchase. Except as provided in Section 14.5 below, upon the occurrence of a Retiring Event with respect to any Member, the Company shall have the option (the “Retirin g Event Purchase Option ”) to purchase all, but not less than all, of the Membership Interest owned by the Retiring Member. The Company may exercise the Retiring Event Purchase Option by delivering Notice of exercise to the Retiring Member at any time prior to the expiration of the Retiring Event Option Period. The determination by the Company concerning the exercise of the Retiring Event Purchase Option shall be made by the Board of Directors.
 
(i)                            If the Company exercises the Retiring Event Purchase Option, the Company shall purchase and the Retiring Member shall sell the Membership Interest of the Retiring Member; the purchase and sale shall be consummated on the terms and conditions set forth in Section 14.3 hereof.
 
(ii)                         If the Company does not exercise the Retiring Event Purchase Option, the Retiring Member shall become a Holder, and the Membership Interest held by the Retiring Member shall become an Assignee Interest.
 
14.3                         Closing Procedures and Purchase Price. Except as provided in Section 14.5 below, if the Company and the Retiring Member are able to reach agreement respecting the purchase price and other terms and conditions of the purchase and sale of a Membership Interest of a Retiring Member, such agreed upon terms and conditions shall control such purchase and
 
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sale. In the absence of an agreement between the Company and the Retiring Member, the following procedures shall govern the closing of the purchase and sale of the Membership Interest of a Retiring Member and the payment of the purchase price therefor:
 
(a)                        Except in the case of an Adverse Withdrawal, the purchase price to be paid by the Company to the Retiring Member shall be an amount equal to the Net Equity of the Membership Interest owned by the Retiring Member (in addition to the accrued Class A Preferred Return payable upon the Permitted Withdrawal of a Class A Member). In the case of an Adverse Withdrawal, the Purchase Price to be paid by the Company to the Retiring Member shall be an amount equal to the greater of (i) the positive balance of such Member’s Capital Account on the date of the Adverse Withdrawal or (ii) one hundred dollars ($100). In each instance, the purchase price to be paid by the Company shall be reduced by any and all amounts owed by such Retiring Member to the Company (including, without limitation, any loss, cost or damage suffered by the Company as the result of the breach of this Agreement by the Retiring Member); and by execution of this Agreement, each Member agrees that, upon the occurrence of a Retiring Event so that a Member becomes a Retiring Member, the Company may set off any and all amounts owed by such Retiring Member to the Company (including, without limitation, any loss, cost or damage suffered by the Company as the result of the breach of this Agreement by the Retiring Member) against the purchase price otherwise payable to such Retiring Member, pursuant to this ARTICLE 14.
 
(b)                        The closing of any purchase and sale provided for in this ARTICLE 14 shall occur on a date and at a time mutually agreeable to the Company and the Retiring Member, which shall not be later than sixty (60) days from (i) the date of the notice from the Company’s accountants specifying the Net Equity of the Membership Interest owned by such Retiring Member; or (ii) in the case of a purchase and sale following an Adverse Withdrawal, the date of the Notice of intent to exercise the Retiring Event Purchase Option.
 
(c)                         Except in the case of an Adverse Withdrawal, the purchase price payable by the Company to the Retiring Member shall be payable as follows:
 
(i)                            An initial payment in cash or immediately available funds equal to twenty percent (20%) of the purchase price shall be due and payable at the closing of the purchase and sale; and
 
(ii)                         At the Company’s option, the balance of the purchase price shall be payable at the closing of the purchase and sale either (A) in cash or immediately available funds, or (B) by delivery of the Company’s unsecured promissory note in the amount of the such balance, which such note shall be payable in sixty (60) equal monthly installments of principal plus interest on the unpaid balance thereof at an annual rate equal to the lesser of (x) the Base Rate, or (y) the maximum rate permitted by law.
 
(d)               In the case of an Adverse Withdrawal, the purchase price payable by the Company to the Retiring Member shall be payable (i) in cash or immediately available funds payable at the closing of the purchase and sale; or (ii) if the amount payable to such Retiring Member is in excess of $10,000.00, the Company shall have the option of paying such amount
 
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in five (5) equal annual installments without interest with the first such installment being due and payable on the first anniversary of the closing of the purchase and sale.
 
(e)                         At the closing of the purchase and sale, the Retiring Member and the Company shall execute such documents and instruments as may be necessary or appropriate to effectuate the transactions contemplated by this ARTICLE 14 (including without limitation, the Transfer of the Membership Interest of such Retiring Member to the Company free and clear of any liens, claims, encumbrances, security interests or options). All such documents and instruments shall be in a form that is reasonably satisfactory to the parties and their respective counsel.
 
(f)                          The Company and the Retiring Member shall pay the fees and disbursements of their respective attorneys, and all other reasonable costs and expenses associated with the Transfer and closing (including, without limitation the costs associated with the determination of the Net Equity of the Retiring Member) shall be divided equally between the Company and the Retiring Member.
 
14.4                         Net Equity. The “ Net Equity ” of a Membership Interest means as of any day, the amount that would be distributed to a Member, pursuant to Section 15.3 hereof if (i) the Gross Asset Values of the Company’s assets were adjusted as set forth in the definition of Gross Asset Value set forth in Section 1.2 hereof, (ii) all of the Company’s assets were sold for their Gross Asset Values, as so adjusted, (iii) the Company paid its accrued, but unpaid, liabilities and established reserves pursuant to Section 15.3 hereof for the payment of reasonably anticipated contingent liabilities, and (iv) the Company distributed the remaining proceeds to the Members in complete liquidation of the Company.
 
(a)                        At any time this Agreement requires a determination of the Net Equity of a Membership Interest, such determination shall be made, without audit or certification, from the books and records of the Company by the accounting firm regularly employed by the Company. Once determined as aforesaid, the Net Equity shall be disclosed to the Company and the affected Member or his representative by written notice. The determination of the Net Equity by such accountants shall be final and binding upon the Company and the Members in the absence of a showing of gross negligence or willful misconduct.
 
(b)                        If a determination of the Net Equity is required by reason of the occurrence of a Retiring Event: (i) the Company shall send written notice to its accountants requesting that they make a determination of such Net Equity within thirty (30) days of the date of the date of the Notice of intent to exercise the Retiring Event Purchase Option; and (ii) the Net Equity of the Membership Interest of a Retiring Member shall be determined as of the last day of the month in which the Retiring Event occurs; provided, however, for purposes of this ARTICLE 14 , the Net Equity of the Membership Interest of a Retiring Member shall be reduced by the amount of any and all obligations owed to the Company by such Retiring Member; and by execution of this Agreement, each Member agrees that, upon the occurrence of a Retiring Event so that a Member becomes a Retiring Member, the Company may set off any and all amounts owed by such Retiring Member to the Company (including, without limitation, any loss, cost or damage suffered by the Company as the result of the breach of this Agreement by the Retiring Member) against the purchase price otherwise payable to such Retiring Member, pursuant to this ARTICLE 14 .
 
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14.5                         Termination of Employment of Class B Member. If a Class B Member’s employment with the Company is terminated for whatever reason before the expiration of sixty (60) months from the date of initial employment (“ Early Termination ”), then upon such Early Termination, such Class B Member shall, without any further act or deed, be deemed to have resigned as a Member of the Company subject to the following:
 
(a)                        Company Call Option . Upon Early Termination, the Company, through action of the Board of Directors, shall have ninety (90) days (the “ Option Period ”) to exercise a call option (“ Company Call Option ”) to purchase all of the Membership Interest of the terminated Class B Member by delivering written notice thereof to the terminated Class B Member before the expiration of the Option Period. The purchase price of the redeemed Membership Interest shall equal the positive Capital Account balance of such terminated Class B Employee Member. At the Company’s option, the purchase price shall be payable at the closing of the purchase and sale either (A) in cash or immediately available funds, or (B) by delivery of the Company’s unsecured promissory note in the amount of the such balance, which such note shall be payable in sixty (60) equal monthly installments of principal plus interest on the unpaid balance thereof at an annual rate equal to the lesser of (x) the Base Rate, or (y) the maximum rate permitted by law.
 
(b)                        Forfeiture of Capital Account.
 
(i)                            Subject to (ii) below, in the event the Company does not exercise its Company Call Option, the terminated Class B Member’s capital account balance as of the date of termination shall be forfeited and allocated pro-rata among the other Members based on their positive capital account balances as of the date of termination.
 
(ii)                         A portion of the terminated Class B Member’s Capital Account balance shall be released from the forfeiture provision of clause (i) above based upon years of employment with the Company as follows: 25% at the end of 12 months, 24 months, 36 months, and 48 months from the initial date of employment. In the event that a portion of such Class B Member’s capital account shall have been released from forfeiture (the “ Released Amount ”), then upon Early Termination, the Company shall redeem the terminated Class B Member’s Membership Interest at a purchase price equal to the Released Amount in the manner provided in 14.3(c)(i)—(ii) above.
 
ARTICLE 15
DISSOLUTION AND WINDING UP
 
15.1                         Dissolution. The Company shall dissolve and commence winding up and liquidating upon the first to occur of any of the following events (“ Dissolution Events ”):
 
(a)               The Super-Majority Vote of the Members to dissolve, wind up and liquidate the Company;
 
(b)               The sale of all or substantially all of the assets of the Company and the collection of the purchase price to be paid therefor;
 
(c)                At any time there remain no Members;
 
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(d)               The entry of a decree of judicial dissolution under §18-802 of the Act; or
 
(e)                The occurrence of any other event that causes the dissolution of a limited liability company under the Act.
 
15.2                         Continuation. The Members hereby agree that the Company shall not dissolve prior to the occurrence of a Dissolution Event. Further, upon the occurrence of the Dissolution Event, set forth in Section 15.1(c)  hereof, the Company shall not be dissolved and is not required to be wound up if, within ninety (90) days after the occurrence of the event that terminated the continued membership of the last remaining Member, the Personal Representative of the last remaining Member agrees in writing to continue the Company and to the admission of such Member’s personal representative or its nominee or designee to the Company as a Member, which such admission shall be effective as of the date of the occurrence of the event that terminated the continued membership of the last remaining Member.
 
15.3                         Winding Up, Liquidation and Distribution of Assets. Unless the Company is continued pursuant to Section 15.2 hereof, upon the occurrence of a Dissolution Event, the Company shall be dissolved, and the Company shall cease carrying on its business, except as may be necessary for the winding up of its affairs in an orderly manner; however, the Company’s existence is not terminated and shall continue until the winding up of its affairs is completed and articles of termination have been accepted for filing. The Chief Executive Officer or such other Person or Persons designated by the Board of Directors shall be responsible for overseeing the winding up and liquidation of the Company and shall take full account of the Company’s assets and liabilities. Except to the extent distributed in kind, the Company’s assets shall be sold or otherwise liquidated as promptly as is consistent with obtaining the fair value thereof; and the proceeds therefrom, to the extent sufficient therefor, shall be applied and distributed in the following order:
 
(a)                        First, to pay and discharge all of the Company’s debts and liabilities to creditors (including, to the extent permitted by law, Members who are creditors) and to establish any reserves that may be reasonably necessary to provide for contingencies or unknown liabilities of the Company (for purposes of determining the Capital Account balance of the Members, the amount of any such reserves shall be treated as an expense of the Company);
 
(b)                        Second to Class A Members owning Class A Membership Interests in an amount equal to the sum of (i) each such Class A Member’s respective Unreturned Capital Account and (ii) each such Class A Member’s unpaid Class A Preferred Return.
 
(c)                         Third, to the Members to the extent of their positive Capital Account balances after giving effect to all contributions, distributions and allocations for all periods.
 
(d)                        Thereafter, to all Members in proportion to their Percentage Interests.
 
The Chief Executive Officer or other Person or Persons selected by the Board of Directors to oversee the winding up and dissolution shall receive such compensation as is approved by the Members for the services performed pursuant to this ARTICLE 15 .
 
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15.4                         Compliance With Requirements of Regulations. In the event the Company is “liquidated” within the meaning of §1.704-1 (b)(2)(ii)(g) of the Regulations, distributions shall be made pursuant to this ARTICLE 15 to the Members who have positive Capital Accounts in compliance with §1.704-1(b)(2)(ii)(b)(2) of the Regulations. If any Member has a deficit balance in his Capital Account (after giving effect to all contributions, distributions, and allocations for all taxable years, including the year during which such liquidation occurs), such Member shall have no obligation to make any contribution to the capital of the Company with respect to any such deficit, and any such deficit shall not be considered a debt owed to the Company or any other Person for any purpose whatsoever.
 
15.5                         Articles of Termination. Upon completion of the winding up of the affairs of the Company, the Chief Executive Officer, or such other Person as the Act may permit or require shall file a Articles of Termination with the Secretary of State of the State of Delaware and take such other actions as may be necessary to terminate the existence of the Company.
 
ARTICLE 16
AMENDMENTS
 
16.1                         Amendments.
 
(a)                        Subject to the limitations set forth in Section 16.2 , this Agreement may be amended by the Board, without any approval by the Members, in order to:
 
(i)                            substitute and admit a Member who has been admitted in accordance with this Agreement;
 
(ii)                         change the name or residence of any Member;
 
(iii)                      cure any ambiguity, or correct or supplement any provision herein which may be inconsistent with any other provision herein;
 
(iv)                     delete or add any provision of this Agreement required to be so deleted or added by the U.S. Small Business Administration or any other federal or state regulatory agency, which addition or deletion is deemed by such agency to be for the benefit or protection of the Members; or
 
(v)                        comply with the provisions of the Act, as amended, and any successor statute, as well as the laws of any other state.
 
(b)                        Except as set forth in subsection (a) of this Section 16.1 , amendments to this Agreement may be proposed by the Board of Directors or any one or group of Members holding five percent (5%) or more of the voting power then held by Members entitled to vote. Following such proposal, the Secretary shall submit to the Members a verbatim statement of any proposed amendment. A proposed amendment shall be adopted and shall be effective as an amendment hereto if it receives the affirmative vote or the written consent of the Members by Super-Majority Vote.
 
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16.2                         Limitation on Amendments. Notwithstanding Section 16.1 hereof, no amendment to this Agreement shall:
 
(a)                        Except for an amendment required in connection with the admission of any additional Members in accordance with the terms of this Agreement, modify or alter the method of determining, the order of priority or the interest of a Member in (i) allocations of Profits and Losses, (ii) allocations or distributions of Cash Available For Distribution, or (iii) allocation or distribution of proceeds resulting from the liquidation of the Company, unless such amendment receives the affirmative vote or written consent of each Member adversely affected thereby.
 
(b)                                  Amend the provisions of ARTICLE 13 without the affirmative vote or written consent of all the Members.
 
(c)                         Amend this Section 16.2 without the affirmative vote or written consent of all the Members.
 
For purposes of this Section 16.2 only, the failure of a Member to respond shall not constitute a vote that is consistent with respect to any amendment described in this Section 16.2, and any amendment described in this Section 16.2 shall require the affirmative vote at a meeting of the Members or the affirmative written consent without a meeting in order to be effective.
 
ARTICLE 17
POWER OF ATTORNEY
 
17.1                         Appointment. To the extent not inconsistent with any other term of this Agreement, each Member makes, constitutes and appoints the Chief Executive Officer, with power of substitution, as his true and lawful attorney-in-fact for him with full power and authority in his name, place, and stead and for his use and benefit, from time to time:
 
(a)                        to make, sign, execute and deliver any agreements, instruments, certificates and documents provided for herein to effect, evidence or perfect any Transfers effected or required hereunder or pursuant to the terms of this Agreement;
 
(b)                        to make, sign, execute, certify and deliver any amendment to this Agreement duly adopted by the Members in accordance with terms of ARTICLE 16 hereof; and
 
(c)                         to make, sign, execute, certify and deliver any agreements, instruments, certificates and documents that may be required or appropriate to effect the dissolution and termination of the Company, including, without limitation, any instrument approved by the Members creating or evidencing creation of a liquidating trust to receive distributions or other payment to Members in connection with the liquidation of the Company, to hold the same and earnings thereon for the benefit of the creditors and Members of the Company and, upon satisfaction of the trustee that all claims against the Company having priority over claims of the Members have been satisfied, to pay or distribute the remaining funds in priorities paralleling those set forth in this Agreement applicable to the proceeds of winding up.
 
51 

 
The powers hereby conferred to make, sign, execute, certify and deliver agreements shall be deemed to include the powers to acknowledge, swear to, verify, file, record and publish the same.
 
17.2                         Exercise and Survival. Each power of attorney granted under this Agreement:
 
(a)                        May be exercised by any such attorney-in-fact acting alone;
 
(b)                        Is a special power of attorney coupled with an interest and is irrevocable;
 
(c)                         May be exercised by such attorney-in-fact by listing all of the principals executing any agreement, certificate, instrument or document with the single signature of such attorney-in-fact for all of said principals;
 
(d)                        Shall survive the dissolution of the Company through winding up to termination;
 
(e)                         Shall survive the Transfer of the whole or part of a Member’s Membership Interest, except that where such Transfer is of the entire Membership Interest of such Member, and the transferee is admitted as a Substitute Member, the power of attorney shall survive such Transfer for the sole purpose of enabling any such attorney-in-fact to make, sign, execute, certify and deliver any agreements, instruments, certificates and documents that may be required or appropriate to effect such substitution; and
 
(f)                          To the fullest extent permitted by applicable law, shall survive the death, disability, legal incapacity, Bankruptcy, insolvency, dissolution or cessation of existence of a Member.
 
ARTICLE 18
MISCELLANEOUS
 
18.1                         Statutory Override. To the maximum extent permitted by applicable law, the provisions of this Agreement shall govern over all provisions of the Act except those provisions of the Act that cannot be waived or modified under the Act. Further, for each question (a) with respect to which the Act provides a rule (a “ default rule ”) but permits the limited liability company agreement to provide a different rule; and (b) that is addressed by this Agreement, the default rule shall not apply to the Company.
 
18.2                         Liquidation Safe Harbor Valuation. This Section 18.2 shall apply after the effective date of any final Regulations or of final guidance by the Internal Revenue Service with respect to the Transfer of a Membership Interest to a new or existing Member of the Company in connection with the performance of services for the Company or otherwise under which the Company may make an election (a “Safe Harbor Election”) to treat the liquidation value of Membership Interest so Transferred as being the fair market value of that Membership Interest for purposes of Section 83 of the Code. From and after the effective date of any final Regulations or of final guidance by the Internal Revenue Service, each Member and each Person (including any Person to whom any Units are Transferred in connection with the performance of services for the Company or otherwise) and each assignee and Transferee of a Member who acquires Units agrees that that (a) the Company is authorized and directed to make the Safe Harbor
 
52 

 
Election, and (b) each such Person agrees to comply with all requirements of such Regulations or guidance with respect to all Units so Transferred while the Safe Harbor Election remains effective. The Safe Harbor Election may be revoked by the consent of Class A Members holding a Majority Interest.
 
18.3                         Notices. Any Notice shall be delivered personally to the Person or to an officer of the Person to whom the same is directed, or sent by regular, registered, or certified mail, commercial delivery service, overnight courier, telegraph or facsimile transmitter, addressed as follows: if to the Company, to the Company at the address set forth in Section 2.3(a)  hereof, or to such other address as the Company may from time to time specify by Notice to the Members; if to a Member to such Member at the address set forth on the signature pages to this Agreement by such Members or to such other address as such Member may from time to time specify by Notice to the Company. Any such Notice shall be deemed to have been given and received for all purposes under this Agreement: (a) three (3) Business Days after the same is deposited in any official depository or receptacle of the United States Postal Service first class certified mail, return receipt requested, postage prepaid; (b) on the date of confirmed transmission when delivered by telecopier or facsimile transmission, telex, telegraph or other telecommunication device; (c) on the next Business Day after the same is deposited with a nationally recognized overnight delivery service that guarantees overnight delivery; and (d) on the date of actual delivery to such party or any other means; provided, however, if the day such Notice shall be deemed to have been given and received as aforesaid is not a Business Day (or if delivery is made after 5:00 p.m. (recipient’s local time) on any Business Day), such Notice shall be deemed to have been given and received on the next Business Day.
 
18.4                         Binding Effect. Except as otherwise provided in this Agreement or the Act, every covenant, term and provision of this Agreement shall be binding upon and inure to the benefit of the Company, the Members and their respective Personal Representatives.
 
18.5                         No Third Party Beneficiary. This Agreement is made solely and specifically among and for the benefit of the parties hereto and their respective successors and assigns. Except and only to the extent provided herein or in the Act (or other applicable law), no creditor or any other Person shall have any right, interest or claims under or on account of this Agreement as a third party beneficiary or otherwise.
 
18.6                         Time. Time is of the essence with respect to this Agreement.
 
18.7                         Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.
 
18.8                         Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement.
 
18.9                         Incorporation by Reference. Every exhibit, schedule, and other appendix attached to this Agreement and referred to herein is hereby incorporated in this Agreement by reference.
 
53 

 
18.10                  Additional Assurances. Each Member, upon the request of the Company, agrees to perform all further acts and execute, acknowledge, and deliver any documents that may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement.
 
18.11                  Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the matters contained herein. No party shall be bound by any terms, conditions, statements or representations, oral or written, not contained herein. Each party hereby acknowledges that he has not been induced, persuaded or motivated by any promise or representation made by any other party that is not expressly set forth herein. All previous negotiations, statements and preliminary instruments by the parties or their representatives are merged in this Agreement.
 
18.12                  Governing Law. This Agreement shall be governed in all respects, including validity, interpretation and effect by, and shall be enforceable in accordance with the internal laws of the State of Delaware without regard to conflicts of laws principles.
 
18.13                  Counterpart Execution. This Agreement may be executed in multiple counterparts, each one of which shall be deemed an original, but all of which shall be considered together as one and the same instrument. Further, in making proof of this Agreement, it shall not be necessary to produce or account for more than one (1) such counterpart. Execution by a party of a signature page hereto shall constitute due execution and shall create a valid, binding obligation of the party so signing, and it shall not be necessary or required that the signatures of all parties appear on a single signature page hereto.
 
18.14                  Electronic Signatures. Delivery of the executed signature pages to this Agreement may be made by facsimile or other electronic transmission. Any such signature pages sent by facsimile or other electronic transmission shall be deemed to be originals for all purposes, and copies of this Agreement containing one or more signature pages that have been delivered by facsimile or other electronic transmission shall constitute enforceable original documents.
 
18.15                  Specific Performance. In view of (a) the complexities and uncertainties in measuring actual damages to be sustained by reason of the failure of a Member to perform this Agreement strictly in accordance with the specific terms hereof, (b) the uniqueness of the Company’s business, and (c) the relationship among the Members, each Member acknowledges and agrees that: (i) the remedy at law for a breach of this Agreement would be inadequate, and (ii) the Company and the other Members would be irreparably damaged if any of the provisions of this Agreement are not performed strictly in accordance with their specific terms. Therefore, it is expressly agreed that, in addition to any other remedy to which the nonbreaching Members may be entitled, at law or in equity, the nonbreaching Members shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and to specifically enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof.
 
54 

 
IN WITNESS WHEREOF , the parties have made, adopted and entered into this Operating Agreement as of the date first above written.

 	Diamond State Ventures II Limited Partnership	
 	 	 	
 	By:	DSV2 LLC, its General partner	

 	 	By:	/s/ Joe T. Hays	
 	 	 	Joe T. Hays, Managing Director	
 	 	
 	Banyan Equity Investors II, INC.	

 	By:	/s/ Michalis Stavrinides	
 	 	 	Michalis Stavrinides, President	
 	 	
 	MidStates Capital Fund II, L.P.	
 	 	
 	By:	MidStates Partners Fund II, LLC, General partner	
 	 	 	 	
 	 	By:	/s/ Bart S. Bergman	
 	 	 	Bart S. Bergman, Principal	
 	 	
 	CapSource 2000 Fund, L.P.	
 	 	
 	By:	CapSource 2000 Partners , L.P., its general partner	
 	 	
 	 	By:	CapSource Managers, Inc., its general partner	

 	 	 	By:	/s/ Larry M. Hicks	
 	 	 	Larry M. Hicks, Chief Financial Officer	
 	 	
 	CGP Baskins, LLC	

 	By:	/s/ William Reisler	
 	 	 	William Reisler, President	

55 

EXHIBIT A
TO
LIMITED LIABILITY COMPANY AGREEMENT OF
BASKINS ACQUISITION HOLDINGS, LLC
CLASS A MEMBERS
 
The name, address and Capital Contributions of each Class A Member, together with the number of Units held by each Class A Member, are as follows:

 	 	Capital	 	 	 	
Name and Address:	 	Contribution	 	Units	 	
 	 	 	 	 	 	
Diamond State Ventures II Limited Partnership
200 South Commerce, Suite 400
Little Rock, AR 72201	 	$	1,333,333	 	1,333.33	 	
 	 	 	 	 	 	
Banyan Equity Investors II, Inc.
1111 Brickell Avenue, Suite 1300
Miami, FL 33131	 	$	1,833,333	 	1,833.33	 	
 	 	 	 	 	 	
MidStates Capital Fund II, L.P.
7300 West 110 th  Street, 7 th  Floor
Overland Park, Kansas 66210	 	$	416,667	 	416.67	 	
 	 	 	 	 	 	
CapSource 2000 Fund L.P.
499 Keywood Circle, Suite B
Flowood, MS 39232	 	$	250,000	 	250.00	 	
 	 	 	 	 	 	
CGP Baskins, LLC
1800 Baltimore Avenue, Suite 300
Kansas City, MO 64108	 	$	166,667	 	166.67	 	
 	 	 	 	 	 	
TOTALS	 	$	4,000,000	 	4,000	 	
 
56 

 
CLASS B MEMBERS
 
The name, address of each Class B Member, together with the number of Units held by each Class B Member, are as follows:

 	 	Capital	 	 	 	
Name and Address:	 	Contribution	 	Units	 	
 	 	 	 	 	 	
CGP Baskins, LLC
1800 Baltimore Avenue, Suite 300
Kansas City, MO 64108	 	Services	 	363.64	 	
 	 	 	 	 	 	
Reserved	 	 	 	484.84	 	
 	 	 	 	 	 	
TOTAL	 	 	 	848.48	 	
 
57 

Exhibit 3.5
 
Delaware
 
The First State
 
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “BOOT BARN, INC. ”, FILED IN THIS OFFICE ON THE TWENTY-SECOND DAY OF AUGUST, A.D. 2007, AT 9:02 O’CLOCK A.M.
 
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

4410984          8100
 
070944778		 	 	
		 	/s/ Harriet Smith Windsor	
		 	Harriet Smith Windsor , Secretary of State	
		 	 	 	
		 	AUTHENTICATION:	    5945144	
		 	 	 	
		 	DATE:	    08-22-07	
 
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 	 	State of Delaware	
 	 	Secretary of State	
 	 	Division of Corporations	
 	 	Delivered 10:51 AM 08/22/2007	
 	 	FILED 09:02 AM 08/22/2007	
 	 	SRV 070944778 - 4410984 FILE	
 
CERTIFICATE OF INCORPORATION
 
OF
 
BOOT BARN, INC.
 
FIRST : The name of the corporation is Boot Barn, Inc. (hereinafter called the “Corporation”).
 
SECOND : The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle, 19808. The name of the registered agent of the Corporation in the State of Delaware at such address is Corporation Service Company.
 
THIRD : The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
 
FOURTH : The Corporation is authorized to issue one class of stock designated “Common Stock.” The total number of shares of Common Stock authorized to be issued is One Thousand (1,000); the par value of such shares shall be $0,001 per share.
 
FIFTH : The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws of the Corporation.
 
SIXTH : In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend or rescind the Bylaws of the Corporation.
 
SEVENTH : Election of directors at an annual or special meeting of stockholders need not be by written ballot unless the Bylaws of the Corporation shall so provide.
 
EIGHTH : The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by statute and all rights at any time conferred upon stockholders of the Corporation by this certificate of incorporation are granted subject to the provisions of this Article EIGHTH.
 
NINTH : No director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that this Article NINTH shall not eliminate or limit the liability of a director (i) for any breach of such director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which such director derived any improper

 
personal benefit. If the General Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware as so amended. No amendment to or repeal of this Article NINTH shall adversely affect any right or protection of any director of the Corporation existing at the time of such amendment or repeal for or with respect to acts or omissions of such director prior to such amendment or repeal.
 
TENTH : The Corporation shall, to the fullest extent permitted by the provisions of Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under such section from and against any and all of the expenses, liabilities or other matters referred to in or covered by such section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors and administrators of such a person.
 
ELEVENTH : The name and the mailing address of the incorporator are as follows:
 
Barbara Alder
c/o Paul, Hastings, Janofsky & Walker LLP
695 Town Center Drive, 17th Floor
Costa Mesa, CA 92626
 
The undersigned, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 21st of August, 2007.

 	/s/ Barbara Alder	
 	Barbara Alder, Incorporator	
 
2 

Exhibit 3.6
 
BYLAWS
 
OF
 
BOOT BARN, INC.
 
(as Amended)

 
TABLE OF CONTENTS

 	 	Page	
 	 	 	
Article I	OFFICES	1	
Section 1.01	REGISTERED OFFICE	1	
Section 1.02	PRINCIPAL OFFICE	1	
Section 1.03	OTHER OFFICES	1	
Article II	MEETINGS OF STOCKHOLDERS	1	
Section 2.01	ANNUAL MEETINGS	1	
Section 2.02	SPECIAL MEETINGS	1	
Section 2.03	PLACE OF MEETINGS	2	
Section 2.04	NOTICE OF MEETINGS	2	
Section 2.05	QUORUM	2	
Section 2.06	VOTING	3	
Section 2.07	LIST OF STOCKHOLDERS	4	
Section 2.08	INSPECTOR OF ELECTION	4	
Section 2.09	STOCKHOLDER ACTION WITHOUT MEETINGS	4	
Section 2.10	RECORD DATE	5	
Article III	BOARD OF DIRECTORS	5	
Section 3.01	GENERAL POWERS	5	
Section 3.02	NUMBER AND TERM	5	
Section 3.03	ELECTION OF DIRECTORS	6	
Section 3.04	RESIGNATION AND REMOVAL	6	
Section 3.05	VACANCIES	6	
Section 3.06	PLACE OF MEETING; TELEPHONE CONFERENCE MEETING	6	
Section 3.07	FIRST MEETING	7	
Section 3.08	REGULAR MEETINGS	7	
Section 3.09	SPECIAL MEETINGS	7	
Section 3.10	QUORUM AND ACTION	7	
Section 3.11	ACTION BY CONSENT	7	
Section 3.12	COMPENSATION	7	
Section 3.13	COMMITTEES	8	

i 

 
TABLE OF CONTENTS
(continued)

 	 	Page	
 	 	 	
Section 3.14	OFFICERS OF THE BOARD	8	
Article IV	OFFICERS	8	
Section 4.01	OFFICERS	8	
Section 4.02	ELECTION AND TERM	8	
Section 4.03	SUBORDINATE OFFICERS	9	
Section 4.04	REMOVAL AND RESIGNATION	9	
Section 4.05	VACANCIES	9	
Section 4.06	CHAIRMAN OF THE BOARD	9	
Section 4.07	CHIEF EXECUTIVE OFFICER	9	
Section 4.08	PRESIDENT	9	
Section 4.09	VICE PRESIDENT	10	
Section 4.10	SECRETARY	10	
Section 4.11	TREASURER	10	
Section 4.12	COMPENSATION	11	
Article V	CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.	11	
Section 5.01	EXECUTION OF CONTRACTS	11	
Section 5.02	CHECKS, DRAFTS, ETC.	11	
Section 5.03	DEPOSIT	11	
Section 5.04	GENERAL AND SPECIAL BANK ACCOUNTS	12	
Article VI	SHARES AND THEIR TRANSFER	12	
Section 6.01	CERTIFICATES FOR STOCK	12	
Section 6.02	TRANSFER OF STOCK	12	
Section 6.03	REGULATIONS	13	
Section 6.04	LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES	13	
Section 6.05	REPRESENTATION OF SHARES OF OTHER CORPORATIONS	13	
Article VII	INDEMNIFICATION	13	
Section 7.01	ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION	13	

ii 

 
TABLE OF CONTENTS
(continued)

 	 	Page	
 	 	 	
Section 7.02	ACTIONS BY OR IN THE RIGHT OF THE CORPORATION	14	
Section 7.03	DETERMINATION OF RIGHT OF INDEMNIFICATION	14	
Section 7.04	INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY	14	
Section 7.05	ADVANCE OF EXPENSES	14	
Section 7.06	OTHER RIGHTS AND REMEDIES	15	
Section 7.07	INSURANCE	15	
Section 7.08	CONSTITUENT CORPORATIONS	15	
Section 7.09	EMPLOYEE BENEFIT PLANS	15	
Section 7.10	TERM	16	
Section 7.11	SEVERABILITY	16	
Article VIII	MISCELLANEOUS	16	
Section 8.01	SEAL	16	
Section 8.02	WAIVER OF NOTICES	16	
Section 8.03	LOANS AND GUARANTIES	16	
Section 8.04	GENDER	17	
Section 8.05	AMENDMENTS	17	

iii 

BYLAWS
 
OF
 
BOOT BARN, INC.
a Delaware corporation
 
ARTICLE I
 
OFFICES
 
Section 1.01           REGISTERED OFFICE. The registered office of Boot Barn, Inc. (hereinafter called the “Corporation”) shall be at such place in the State of Delaware as shall be designated by the Board of Directors (hereinafter called the “Board”).
 
Section 1.02           PRINCIPAL OFFICE. The principal office for the transaction of the business of the Corporation shall be at such location, within or without the State of Delaware, as shall be designated by the Board.
 
Section 1.03           OTHER OFFICES. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board may from time to time determine or as the business of the Corporation may require.
 
ARTICLE II
 
MEETINGS OF STOCKHOLDERS
 
Section 2.01           ANNUAL MEETINGS. Annual meetings of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings may be held at such time, date and place as the Board shall determine by resolution.
 
Section 2.02           SPECIAL MEETINGS. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board, or by a committee of the Board which has been duly designated by the Board and whose powers and authority, as provided in a resolution of the Board or in the Bylaws, include the power to call such meetings, or by one or more stockholders holding shares in the aggregate entitled to cast not less than 20% of the votes at that meeting, but such special meetings may not be called by any other person or persons; provided, however, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provisions of the Certificate of Incorporation or any amendment thereto or any certificate filed under Section 151(g) of the General Corporation Law of the State of Delaware (or its successor statute as in effect

 
from time to time hereafter), then such special meeting may also be called by the person or persons, in the manner, at the time and for the purposes so specified.
 
Section 2.03           PLACE OF MEETINGS. All meetings of the stockholders shall be held at such places, within or without the State of Delaware, as may from time to time be designated by the person or persons calling the respective meetings and specified in the respective notices or waivers of notice thereof.
 
Section 2.04           NOTICE OF MEETINGS. Except as otherwise required by law, notice of each meeting of the stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him personally, or by depositing such notice in the United States mail, in a postage prepaid envelope, directed to him at his address furnished by him to the Secretary of the Corporation for such purpose or, if he shall not have furnished to the Secretary his address for such purpose, then at his address last known to the Secretary, or by transmitting a notice thereof to him at such address by telegraph, cable or wireless. Except as otherwise expressly required by law, no publication of any notice of a meeting of the stockholders shall be required. Every notice of a meeting of the stockholders shall state the place, date and hour of the meeting, and, in the case of a special meeting shall also state the purpose or purposes for which the meeting is called. Except as otherwise expressly required by law, notice of any adjourned meeting of the stockholders need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken.
 
Whenever notice is required to be given to any stockholder to whom (i) notice of two consecutive annual meetings, and all notices of meetings or of the taking of action by written consent without a meeting to such person during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities during a twelve month period, have been mailed addressed to such person at his address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall have been taken or held without notice to such person shall have the same force and effect as if such notice had been duly given. If any such person shall deliver to the Corporation a written notice setting forth his then current address, the requirement that notice be given to such person shall be reinstated.
 
No notice need be given to any person with whom communication is unlawful, nor shall there be any duty to apply for any permanent or license to give notice to any such person.
 
Section 2.05           QUORUM. Except as provided by law, the holders of record of a majority in voting interest of the shares of stock of the Corporation entitled to be voted, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. The stockholders present at a duly called or held meeting at which a quorum is
 
2 

 
present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. In the absence of a quorum at any meeting or any adjournment thereof, a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat or, in the absence therefrom of all the stockholders, any officer entitled to preside at or to act as secretary of such meeting may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called.
 
Section 2.06 VOTING.
 
(a)                                  At each meeting of the stockholders, each stockholder shall be entitled to vote in person or by proxy each share or fractional share of the stock of the Corporation which has voting rights on the matter in question and which shall have been held by him and registered in his name on the books of the Corporation:
 
(i)                                      on the date fixed pursuant to Section 2.10 of these Bylaws as the record date for the determination of stockholders entitled to notice of and to vote at such meeting, or
 
(ii)                                   if no such record date shall have been so fixed, then (A) at the close of business on the day next preceding the day on which notice of the meeting shall be given or (B) if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held.
 
(b)                                  Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors in such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Persons holding stock of the Corporation in a fiduciary capacity shall be entitled to vote such stock. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the Corporation he shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock and vote thereon. Stock having voting power standing of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or with respect to which two or more persons have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law of Delaware.
 
(c)                                   Any such voting rights may be exercised by the stockholder entitled thereto in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized and delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date unless said proxy shall provide for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At any meeting of the
 
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stockholders all matters, except as otherwise provided in the Certificate of Incorporation, in these Bylaws or by law, shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat and thereon. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. The vote at any meeting of the stockholders on any question need not be by ballot, unless so directed by the chairman of the meeting. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and it shall state the number of shares voted.
 
Section 2.07           LIST OF STOCKHOLDERS. The Secretary of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the entire duration thereof, and may be inspected by any stockholder who is present.
 
Section 2.08           INSPECTOR OF ELECTION. If at any meeting of the stockholders a vote by written ballot shall be taken on any question, the chairman of such meeting may appoint an inspector or inspectors of election to act with respect to such vote. Each inspector so appointed shall first subscribe an oath faithfully to execute the duties of an inspector at such meeting with strict impartiality and according to the best of his ability. Such inspectors shall decide upon the qualification of the voters and shall report the number of shares represented at the meeting and entitled to vote on such question, shall conduct and accept the votes, and, when the voting is completed, shall ascertain and report the number of shares voted respectively for and against the question. Reports of the inspectors shall be in writing and subscribed and delivered by them to the Secretary of the Corporation. Inspectors need not be stockholders of the Corporation, and any officer of the Corporation may be an inspector on any question other than a vote for or against a proposal in which he shall have a material interest.
 
Section 2.09           STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law of the State of Delaware to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
 
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Section 2.10           RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders 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 may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board and which record date: (i) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (ii) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten days from the date upon which the resolution fixing the record date is adopted by the Board; and (iii) in the case of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board is required by law, shall be at the close of business on the day on which the Board adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
 
ARTICLE III
 
BOARD OF DIRECTORS
 
Section 3.01           GENERAL POWERS. The property, business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all of the powers of the Corporation, except such as are by the Certificate of Incorporation, by these Bylaws or by law conferred upon or reserved to the stockholders.
 
Section 3.02           NUMBER AND TERM. The number of directors constituting the Board of Directors shall be five (5) (*). Thereafter, the number of directors may be fixed, from time to time, by the affirmative vote of a majority of the entire Board of Directors or by action of the stockholders of the Corporation. Any decrease in the number of directors shall be effective at the time of the next succeeding annual meeting of stockholders unless there shall be vacancies in the Board of Directors,
 
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in which case such decrease may become effective at any time prior to the next succeeding annual meeting to the extent of the number of such vacancies. Directors need not be stockholders. Except as otherwise provided by statute or these Bylaws, the directors shall be elected at the annual meeting of stockholders. Each director shall hold office until his successor shall have been elected and qualified, or until his death, or until he shall have resigned, or have been removed, as hereinafter provided in these Bylaws. (As amended by the Joint Action Taken by Unanimous Written Consent of the Board of Directors and Sole Stockholder, dated as of December 12, 2011). (*)As further amended by the Written Consent of the Board of Directors, dated February 22, 2012)
 
Section 3.03           ELECTION OF DIRECTORS. The directors shall be elected by the stockholders of the Corporation, and at each election the persons receiving the greatest number of votes, up to the number of directors then to be elected, shall be the persons then elected. The election of directors is subject to any provisions contained in the Certificate of Incorporation relating thereto, including any provisions for a classified board.
 
Section 3.04           RESIGNATION AND REMOVAL. Any director of the Corporation may resign at any time upon notice given in writing or by electronic transmission to the Board or to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time is not specified, it shall take effect immediately upon its receipt; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
 
Except as otherwise provided by the Certificate of Incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares then entitled to vote at an election of directors.
 
Section 3.05           VACANCIES. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. Each director so chosen to fill a vacancy shall hold office until his successor shall have been elected and shall qualify or until he shall resign or shall have been removed. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of his term of office.
 
Upon the resignation of one or more directors from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided hereinabove in the filling of other vacancies.
 
Section 3.06           PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board may hold any of its meetings at such place or places within or without the State of Delaware as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or
 
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waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or similar communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting.
 
Section 3.07           FIRST MEETING. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required.
 
Section 3.08           REGULAR MEETINGS. Regular meetings of the Board may be held at such times as the Board shall from time to time by resolution determine. If any day fixed for a meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same hour and place on the next succeeding business day which is not a legal holiday. Except as provided by law, notice of regular meetings need not be given.
 
Section 3.09           SPECIAL MEETINGS. Special meetings of the Board may be called at any time by the Chairman of the Board or the President or by any two (2) directors, to be held at the principal office of the Corporation, or at such other place or places, within or without the State of Delaware, as the person or persons calling the meeting may designate.
 
Notice of the time and place of special meetings shall be given to each director either (i) by mailing or otherwise sending to him a written notice of such meeting, charges prepaid, addressed to him at his address as it is shown upon the records of the Corporation, or if it is not so shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held, at least seventy-two (72) hours prior to the time of the holding of such meeting; or (ii) by oral or electronic notice of such meeting at least forty-eight (48) hours prior to the time of the holding of such meeting. Either of the notices as above provided shall be due, legal and personal notice to such director.
 
Section 3.10           QUORUM AND ACTION. Except as otherwise provided in these Bylaws or by law, the presence of a majority of the authorized number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present. In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such.
 
Section 3.11           ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing or by electronic transmission(s), and such written consent or
 
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electronic transmission(s) are filed with the minutes of proceedings of the Board or such committee. Such action by written consent or electronic transmission shall have the same force and effect as the unanimous vote of such directors.
 
Section 3.12           COMPENSATION. No stated salary need be paid to directors, as such, for their services but, as fixed from time to time by resolution of the Board, the directors may receive directors’ fees, compensation and reimbursement for expenses for attendance at directors’ meetings, for serving on committees and for discharging their duties; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
 
Section 3.13           COMMITTEES. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.
 
Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to these Bylaws. Any such committee shall keep written minutes of its meetings and report the same to the Board when required.
 
Section 3.14           OFFICERS OF THE BOARD. A Chairman of the Board or a Vice Chairman may be appointed from time to time by the Board and shall have such powers and duties as shall be designated by the Board.
 
ARTICLE IV
 
OFFICERS
 
Section 4.01           OFFICERS. The officers of the Corporation shall be a President, a Secretary and a Treasurer. The Corporation may also have, at the discretion of the Board, a Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers as may be appointed in accordance with the provisions of Section 4.03 of these Bylaws. Any number of offices may be held
 
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by the same person. The salaries of all officers of the Corporation shall be fixed from time to time by the Board.
 
Section 4.02           ELECTION AND TERM. The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 4.03 or Section 4.05 of these Bylaws, shall be chosen annually by the Board, and each shall hold his office until he shall resign or shall be removed or otherwise disqualified to serve, or until his successor shall be elected and qualified.
 
Section 4.03           SUBORDINATE OFFICERS. The Board may appoint, or may authorize the President or Chief Executive Officer, if any, to appoint, such other officers as the business of the Corporation may require, each of whom shall have such authority and perform such duties as are provided in these Bylaws or as the Board, the President or the Chief Executive Officer, if any, from time to time may specify, and shall hold office until he shall resign or shall be removed or otherwise disqualified to serve.
 
Section 4.04           REMOVAL AND RESIGNATION. Any officer may be removed, with or without cause, by a majority of the directors at the time in office, at any regular or special meeting of the Board, or, except in case of an officer chosen by the Board, by the President or Chief Executive Officer, if any, upon whom such power of removal may be conferred by the Board.
 
Any officer may resign at any time by giving written notice to the Board, the Chairman of the Board, the President, the Chief Executive Officer or the Secretary of the Corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
 
Section 4.05           VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in the Bylaws for the regular appointments to such office.
 
Section 4.06           CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an officer be elected, shall, if present, preside at meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by the bylaws. If there is no Chief Executive Officer or President, the Chairman of the Board shall in addition be the Chief Executive Officer of the corporation and shall have the powers and duties prescribed in Section 4.07 of this Article IV.
 
Section 4.07           CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, if such an officer be elected, shall, subject to the control of the Board, have general supervision, direction and control of the business and affairs of the Corporation. In the absence or disability of the Chairman of the Board, or if no such officer is elected, the Chief Executive Officer shall preside at all meetings of shareholders and the Board of Directors. He shall have the general powers and duties of management usually vested in the chief executive officer of a corporation, and shall have such other powers and duties
 
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with respect to the administration of the business and affairs of the Corporation as may from time to time be assigned to him by the Board of Directors or as prescribed by the bylaws.
 
Section 4.08           PRESIDENT. Subject to such supervisory powers as may be given by the Board of Directors to the Chairman of the Board or the Chief Executive Officer, if there be such officers, the President shall have the general powers and duties of management usually vested in the office of president of a corporation and shall have such other powers and duties as may from time to time be prescribed by the Board of Directors or Chief Executive Officer, if any, or as prescribed by the bylaws. If there is no Chief Executive Officer, the President shall be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 4.07 of this Article IV.
 
Section 4.09           VICE PRESIDENT. The Vice President(s), if any, shall exercise and perform such powers and duties with respect to the administration of the business and affairs of the Corporation as from time to time may be assigned to each of them by the President, by the Chief Executive Officer, if any, by the Chairman of the Board, if any, by the Board or as is prescribed by the Bylaws. In the absence or disability of the President and Chief Executive Officer, if any, the Vice Presidents, in order of their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board, shall perform all of the duties of the President and when so acting shall have all of the powers of and be subject to all the restrictions upon the President.
 
Section 4.10           SECRETARY. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office for the transaction of the business of the Corporation, or such other place as the Board may order, of all meetings of directors and stockholders, with the time and place of holding, whether regular or special, and if special, how authorized and the notice thereof given, the names of those present at directors’ meetings, the number of shares present or represented at stockholders’ meetings and the proceedings thereof.
 
The Secretary shall keep, or cause to be kept, at the principal office for the transaction of the business of the Corporation or at the office of the Corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation.
 
The Secretary shall give, or cause to be given, notice of all the meetings of the stockholders and of the Board required by these Bylaws or by law to be given, and he shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board or these Bylaws. If for any reason the Secretary shall fail to give notice of any special meeting of the Board called by one or more of the persons identified in Section 3.09 of these Bylaws, or if he shall fail to give notice of any special meeting of the stockholders called by one or more
 
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of the persons identified in Section 2.02 of these Bylaws, then any such person or persons may give notice of any such special meeting.
 
Section 4.11           TREASURER. The Treasurer shall keep and maintain or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of capital, shall be classified according to source and shown in a separate account. The books of account at all reasonable times shall be open to inspection by any director.
 
The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board. He shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the President, to the Chief Executive Officer, if any, and to the directors, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board or these Bylaws.
 
Section 4.12           COMPENSATION. The compensation of the officers of the Corporation, if any, shall be fixed from time to time by the Board.
 
ARTICLE V
 
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
 
Section 5.01           EXECUTION OF CONTRACTS. The Board, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board or by these Bylaws, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount. Notwithstanding the foregoing, the President, or such other person as the President may designate, shall have authority to enter into contracts which are usual and customary in the ordinary course of the Corporation’s business on behalf of the Corporation.
 
Section 5.02           CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board. Each such person shall give such bond, if any, as the Board may require.
 
Section 5.03           DEPOSIT. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, attorney or
 
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attorneys, of the Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of the Corporation, the President, the Chief Executive Officer, any Vice President or the Treasurer (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation who shall be determined by the Board from time to time) may endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of the Corporation.
 
Section 5.04           GENERAL AND SPECIAL BANK ACCOUNTS. The Board from time to time may authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by an officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient.
 
ARTICLE VI
 
SHARES AND THEIR TRANSFER
 
Section 6.01           CERTIFICATES FOR STOCK. Every owner of stock of the Corporation shall be entitled to have a certificate or certificates, in such form as the Board shall prescribe, certifying the number and class of shares of the stock of the Corporation owned by him. The certificates representing shares of such stock shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the Chairman of the Board, the President or a Vice President and by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any such certificate shall thereafter have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 6.04 of these Bylaws.
 
Section 6.02           TRANSFER OF STOCK. Transfer of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and
 
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filed with the Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.03 of these Bylaws, and upon surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be stated expressly in the entry of transfer if, when the certificate or certificates shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.
 
Section 6.03           REGULATIONS. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. The Board may appoint, or authorize any officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them.
 
Section 6.04           LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any case of loss, theft, destruction, or mutilation of any certificate of stock, another may be issued in its place upon proof of such loss, theft, destruction, or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sums as the Board may direct; provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper to do so.
 
Section 6.05           REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or any Vice President and the Secretary or any Assistant Secretary of this Corporation are authorized to vote, represent and exercise on behalf of this Corporation all rights incident to all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.
 
ARTICLE VII
 
INDEMNIFICATION
 
Section 7.01           ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify any person who was or is 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 by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation,
 
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partnership, joint venture, trust or other enterprise or as a member of any committee or similar body, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person 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, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.
 
Section 7.02           ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or as a member of any committee or similar body, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
 
Section 7.03           DETERMINATION OF RIGHT OF INDEMNIFICATION. Any indemnification under Section 7.01 or 7.02 of these Bylaws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 7.01 and 7.02 of these Bylaws. Such determination shall be made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders.
 
Section 7.04           INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the other provisions of this Article VII, to the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.01 or 7.02 of these Bylaws, or in defense of any claim, issue or matter therein,
 
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he may be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
 
Section 7.05           ADVANCE OF EXPENSES. Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VII. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate.
 
Section 7.06           OTHER RIGHTS AND REMEDIES. The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VII shall not be deemed exclusive and are declared expressly to be nonexclusive of any other rights to which those seeking indemnification or advancements of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.
 
Section 7.07           INSURANCE. Upon resolution passed by the Board, the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VII.
 
Section 7.08           CONSTITUENT CORPORATIONS. For the purposes of this Article VII, references to “the Corporation” include in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
 
Section 7.09           EMPLOYEE BENEFIT PLANS. For the purposes of this Article VII, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the Corporation”
 
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shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.
 
Section 7.10           TERM. 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 7.11           SEVERABILITY. If any part of this Article VII shall be found, in any action, suit or proceeding or appeal therefrom or in any other circumstances or as to any particular officer, director, employee or agent to be unenforceable, ineffective or invalid for any reason, the enforceability, effect and validity of the remaining parts or of such parts in other circumstances shall not be affected, except as otherwise required by applicable law.
 
ARTICLE VIII
 
MISCELLANEOUS
 
Section 8.01           SEAL. The Board shall provide a corporate seal, which shall be in the form of a circle and shall bear the name of the Corporation and words and figures showing that the Corporation was incorporated in the State of Delaware and showing the year of incorporation.
 
Section 8.02           WAIVER OF NOTICES. Whenever notice is required to be given under any provision of these bylaws, the Certificate of Incorporation or by law, a written waiver, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when a person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless required by the Certificate of Incorporation.
 
Section 8.03           LOANS AND GUARANTIES. The Corporation may lend money to, or guarantee any obligation of, and otherwise assist any officer or other employee of the Corporation or of its subsidiaries, including any officer who is a director, whenever, in the judgment of the Board, such loan, guaranty or assistance may
 
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reasonably be expected to benefit the Corporation. The loan, guaranty, or other assistance may be with or without interest, and may be unsecured or secured in such manner as the Board shall approve, including, without limitation, a pledge of shares of stock of the Corporation.
 
Section 8.04           GENDER. All personal pronouns used in these Bylaws shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate.
 
Section 8.05           AMENDMENTS. These Bylaws, or any of them, may be rescinded, altered, amended or repealed, and new Bylaws may be made (i) by the Board, by vote of a majority of the number of directors then in office as directors, acting at any meeting of the Board or (ii) by the stockholders, by the vote of a majority of the outstanding shares of voting stock of the Corporation, at an annual meeting of stockholders, without previous notice, or at any special meeting of stockholders, provided that notice of such proposed amendment, modification, repeal or adoption is given in the notice of special meeting; provided, however, that Section 2.02 of these Bylaws can only be amended if that Section as amended would not conflict with the Corporation’s Certificate of Incorporation. Any Bylaw made or altered by the stockholders may be altered or repealed by the Board or may be altered or repealed by the stockholders.
 
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Exhibit 3.7
 
State of South Dakota

 
OFFICE OF THE SECRETARY OF STATE
 
Restated
 
Certificate of Incorporation
 
ORGANIZATIONAL ID #: DB027610
 
I, Chris Nelson, Secretary of State of the State of South Dakota, hereby certify that duplicate of the Restated Articles of Incorporation of RCC WESTERN STORES, INC. duly signed and verified, pursuant to the provisions of the South Dakota Business Corporation Act, have been received in this office and are found to conform to law.
 
ACCORDINGLY and by virtue of the authority vested in me by law, I hereby issued this Restated Certificate of Incorporation and attach hereto a duplicate of the Restated Articles of Incorporation of RCC WESTERN STORES, INC..

	IN TESTIMONY WHEREOF,  I have hereunto set my hand and affixed the Great Seal of the State of South Dakota, at Pierre, the Capital, this October 2, 2009.	

 	/s/ Chris Nelson 	
 	Chris Nelson	
 	Secretary of State	
 
RestatedCert Merge

© GOES [ILLEGIBLE]	 	
All Rights Reserved	Litho. in U.S.A.	

 

Filed this 2nd day of	 	RECEIVED	
Oct   , 2009	 	OCT 02 2009	
Chris Nelson 	 	S.D. SEC. OF STATE	
SECRETARY OF STATE	 	 	
 
RESTATED ARTICLES OF INCORPORATION
 
OF
 
RCC WESTERN STORES, INC.
 
The undersigned, Robert L. Hoover, President of RCC Western Stores Inc., offers the following restated articles of incorporation as unanimously approved by the directors and shareholders of the corporation. The restated articles incorporate all amendments to the original articles of incorporation with the additional amendments set forth herein adopted by the shareholders and directors on May 15 th , 2009.
 
I.
 
The name of the corporation is RCC Western Stores, Inc.
 
II.
 
The place where the principal office of the corporation is located is 1180 Creek Drive, Rapid City, South Dakota 57703. The mailing address of the principal office of the corporation is P.O. Box 1139, Rapid City, SD 57709.
 
III.
 
The address of the registered office of the corporation is 1180 Creek Drive, Rapid City, South Dakota. The name of the registered agent at such address is Robert L. Hoover.
 
IV.
 
The period of its duration is perpetual.
 
V.
 
The number of directors shall be at least one (1) but no more than five (5).
 
VI.
 
This corporation shall have the powers to engage in any and all business and lawful activities authorized by South Dakota statutes and all acts amendatory thereto.
 
VII.
 
The total amount of authorized capital stock of this corporation is Ten Thousand shares (10,000). The stock shall consist of two Classes of common stock, Voting Common Stock and Non-Voting Common Stock. There shall be Five Thousand (5,000) shares of Voting Common Stock and Five Thousand (5,000) shares of Non-Voting Common Stock authorized.

 
VIII.
 
Voting common stock and non-voting common stock shall have identical rights to distribution and liquidation proceeds and shall be the same in all respects except that non-voting common stock shall be without voting rights except in the event a vote to dissolve the corporation comes before the stockholders, in which event holders of non-voting common stock shall be entitled to vote.
 
Each certificate of stock issued by the Corporation shall contain identifying language on its face so as to describe the type of common stock. The description for voting common stock shall be “Voting Common Stock” and the description for non-voting common stock shall be “Non-Voting Common Stock.” Until shares specifically designated “Voting Common Stock” and “Non-Voting Common Stock” are issued, all outstanding authorized and issued shares shall be voting shares.
 
IX.
 
There are no existing provisions which limit or deny to shareholders the preemptive right to acquire additional or treasury shares of the corporation.
 
X.
 
No stockholder shall be liable for the debts of the corporation in any amount greater than his unpaid subscription.
 
XI.
 
These articles may be amended in the manner authorized by law at the time of amendment.
 
XII.
 
The undersigned hereby certifies that:
 
a.               These restated articles of incorporation, except as set forth above, correctly set forth without change the corresponding provisions of the articles of incorporation as theretofore amended.
 
b.               These restated articles of incorporation supersede the original articles of incorporation and all amendments thereto.
 
c.                These restated articles of incorporation contain and consolidate all amendments to the original Articles of Incorporation of RCC Western Stores, Inc.
 
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Executed in duplicate the 1st day of May, 2009.

 	/s/ Robert L. Hoover, President	
 	Robert L. Hoover, President	
 
ATTEST:

/s/ Sandra K. Hoover, Secretary	 	
Sandra K. Hoover, Secretary	 	
 
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Exhibit 3.8
 
AMENDED BYLAWS
OF
RCC WESTERN STORES, INC.
 
ARTICLE I. OFFICES
 
The principal office of the Corporation in the state of South Dakota shall be located in the city of Rapid City, South Dakota, county of Pennington. The Corporation may have such other offices, either within or without the state of South Dakota, as the Board of Directors may designate or as the business of the Corporation may require from time to time.
 
The registered office of the Corporation required by the South Dakota Business Corporation Act to be maintained in the state of South Dakota may, but need not, be identical with the principal office in the state of South Dakota, and the address of the registered office may be changed from time to time by the Board of Directors.
 
ARTICLE II. STOCK
 
The Corporation anticipates authorizing two types of common stock — voting and non-voting. It is also anticipated that the new stock will not be issued until some time in the future. Until said shares are issued the outstanding and issued shares of the Corporation (simply designated as common stock) shall retain all rights and shall not be impacted by the authorization of two types of common stock. In the event the voting and non-voting shares are issued they shall be governed by the following terms and conditions.
 
Section 1.     CLASSES OF STOCK. In the event the Corporation issues the authorized voting and non-voting common stock they shall be designated “Voting Common Stock” and “Non-Voting Common Stock.” The Corporation will issue no other classes of stock,
 
Section 2.     VOTING COMMON STOCK. There shall be authorized Five Thousand (5,000) shares of Voting Common Stock. Each issued and outstanding share of Voting Common Stock will have the right to vote and will have all rights as are enjoyed by the outstanding shares of Non-Voting Common Stock.
 
Section 3.     NON-VOTING COMMON STOCK. There shall be authorized Five Thousand (5,000) shares of Common Non-Voting Stock. Non-Voting Common Stock shall not have voting rights except in the event a vote to dissolve the Corporation is called as provided in SDCL 47-1A. In all other respects, Non-Voting Common Stock will have all rights as are enjoyed by the outstanding shares of Voting Common Stock.
 
ARTICLE III. STOCKHOLDERS
 
Section 1.     ANNUAL MEETING . The annual meeting of the stockholders shall be held on the first Tuesday in the month of April in each year, at the hour of 10:00 a.m., for the purpose of electing directors and for the transaction of such other business as may come before the meeting.

 
If the day fixed for the annual meeting is a legal holiday in the state of South Dakota, the meeting shall be held on the next succeeding business day. If the election of directors is not held on the day designated for any annual meeting of the Stockholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as conveniently may be.
 
Section 2.     SPECIAL MEETINGS . Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the president or by the Board of Directors, and shall be called by the president at the request of the stockholders of not less than fifty-one percent (51%) of all outstanding shares of the Corporation entitled to vote at the meeting.
 
Section 3.     PLACE OF MEETING . The Board of Directors may designate any place, either within or without the state of South Dakota, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state of South Dakota, as the place for the holding of the meeting. If no designation is made, or if a special meeting is otherwise called, the place of meeting shall be the registered office of the Corporation in the state of South Dakota. Members of the Board may participate in any meeting of the Board by means of conference telephone, electronic mail, or other means of communication if all persons participating in such meeting can participate in the entire discussion of the matter(s) to be voted upon. Participating in a meeting pursuant to this section shall constitute presence in person at such meeting,
 
Section 4.     NOTICE OF MEETING . Written notice stating the place, day, and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall, unless otherwise prescribed by statute, be delivered not less than ten (10) nor more than thirty (30) days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholders at their addresses as they appear on the stock transfer books of the Corporation.
 
Section 5.     CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE . For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or stockholders entitled to receive payment of any dividend, or in order to make a determination of stockholders for any other proper purpose, the Board of Directors of the Corporation may provide that the stock transfer books shall be closed for a stated period not exceeding fifty (50) days. If the stock transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, the books shall be closed for at least ten (10) days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any determination of stockholders, the date to be not more than fifty (50) days, and in the case of a meeting of stockholders, not less than ten (10) days prior to the date on which the particular action requiring the determination of stockholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of
 
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stockholders entitled to notice of or to vote at a meeting of stockholders, or stockholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring the dividend is adopted shall be the record date for the determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, the determination shall apply to any adjournment thereof.
 
Section 6.     VOTING LISTS . The officer or agent having charge of the stock transfer books for shares of the Corporation shall make a complete list of the stockholders entitled to vote at the meeting or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such list shall be produced and kept open at the time and place of the meeting and shall be subject to inspection of any stockholder during the entire meeting.
 
Section 7.     QUORUM . A majority of the outstanding shares of the Corporation entitled to vote, (but in no event less than 1/3 of the shares entitled to vote), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting to a future date at which a quorum shall be present or represented. Without further notice, such adjourned meeting may be reconvened when a quorum shall be present or represented, and any business may be transacted which might have been transacted at the meeting as originally notified.
 
Section 8.     PROXIES . At all meetings of stockholders, a stockholder may vote in person or by proxy executed in writing by the stockholder or by his/her duly authorized attorney in fact. Such proxy shall be filed with the secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy.
 
Section 9.     VOTING OF SHARES . Subject to the provisions of Section 12 of this Article II, each outstanding share entitled to vote shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of stockholders. If more than one type of common stock is issued only holders of Voting Common Stock shall be entitled to vote upon any issue to come before a meeting except in the event a vote is called to dissolve the Corporation, in which case all stockholders shall be entitled to vote, including holders of Non-Voting Common Stock.
 
Section 10.    MANNER OF ACTING . The act of the majority of the stockholders present at a meeting at which a quorum is present shall be the act of the stockholders.
 
Section 11.    VOTING OF SHARES BY CERTAIN HOLDERS . Shares standing in the name of another corporation may be voted by such officer, agent, or proxy as the bylaws of such corporation may prescribe or, in the absence of such provision, as the Board of Directors of such corporation may determine.
 
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Shares held by an administrator, executor, guardian, or conservator may be voted by him, either in person or by proxy, without a transfer of the shares into his/her name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him/her without a transfer of the shares into his/her name.
 
Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by the receiver without the transfer thereof into his/her name if authority to do so is contained in an appropriate order of the court by which the receiver was appointed.
 
A stockholder whose shares are pledged shall be entitled to vote the shares until the shares have been transferred into the name of the pledgee, and thereafter, the pledgee shall be entitled to vote the shares so transferred.
 
Neither shares of its own stock held by the Corporation, nor those held by another corporation if a majority of the shares entitled to vote for the election of directors of the other corporation are held by the Corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting.
 
Section 12.    INFORMAL ACTION BY STOCKHOLDERS . Any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all of the stockholders entitled to vote with respect to the subject matter thereof.
 
Section 13.    CUMULATIVE VOTING . At each election for directors, every stockholder entitled to vote at the election shall have the right to vote, in person or by proxy, the number of shares owned by him/her for as many persons as there are directors to be elected and for whose election he/she has the right to vote, or to cumulate his/her votes by giving one (1) candidate votes equal to the number of the directors multiplied by the number of his/her shares, or by distributing such votes on the same principle among any number of candidates.
 
Section 14.     WAIVER OF NOTICE BY STOCKHOLDERS . Whenever notice of a meeting is required to be given by mailing or personal service, such notice may be waived by all the Stockholders signing a written waiver of notice and consenting in such writing to the holding of a meeting at a time and on a date specified therein, and setting forth the purpose of such meeting.
 
ARTICLE IV. BOARD OF DIRECTORS
 
Section 1.     GENERAL POWERS . The business and affairs of the Corporation shall be managed by its Board of Directors.
 
Section 2.     NUMBER, TENURE, AND QUALIFICATIONS . The number of directors of the Corporation shall not be less than one (1) and not more than five (5). Each director shall hold office until the next annual meeting of stockholders and until his/her successor is elected and
 
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qualified. At all times at least one (1) director shall be a resident of the state of South Dakota. Directors need not be shareholders.
 
Section 3.     REGULAR MEETINGS . A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after and at the same place as the annual meeting of stockholders. The Board of Directors may provide, by resolution, the time and place, either within or without the state of South Dakota, for the holding of additional regular meetings without other notice than such resolution. Members of the Board may participate in any meeting of the Board by means of conference telephone, electronic mail, or other means of communication if all persons participating in such meeting can participate in the entire discussion of the matter(s) to be voted upon. Participating in a meeting pursuant to this section shall constitute presence in person at such meeting.
 
Section 4.     SPECIAL MEETINGS . Special meetings of the Board of Directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the state of South Dakota, as the place for holding any special meeting of the Board of Directors called by them. Members of the Board may participate in any meeting of the Board by means of conference telephone, electronic mail, or other means of communication if all persons participating in such meeting can participate in the entire discussion of the matter(s) to be voted upon. Participating in a meeting pursuant to this section shall constitute presence in person at such meeting.
 
Section 5.     NOTICE. Notice of any special meeting shall be given at least two (2) days prior to the meeting by written notice delivered personally or mailed to each director at his/her business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, and so addressed. If notice is given by telegram, the notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at a meeting shall constitute a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting.
 
Section 6.     QUORUM . A majority of the number of directors fixed by Section 2 of this Article III shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting and reconvene at a later time without further notice.
 
Section 7.     MANNER OF ACTING. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
 
Section 8.     ACTION WITHOUT A MEETING . Any action that may be taken by the Board of Directors at a meeting may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed before such action by all of the directors.
 
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Section 9.     VACANCIES . Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his/her predecessor in office. Any directorship to be filled by reason of an increase in the number of directors may be filled by election by the Board of Directors for a term of office continuing only until the next election of directors by the stockholders.
 
Section 10.    COMPENSATION . By resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore.
 
Section 11.    PRESUMPTION OF ASSENT . A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken is presumed to have assented to the action taken unless his/her dissent is entered in the minutes of the meeting or unless he/she files his/her written dissent to the action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
 
Section 12.    INDEMNIFICATION OF DIRECTORS AND OFFICERS . The Corporation, insofar as permitted by law, may indemnify any and all of its directors or officers, or both, or former directors or officers, or any person who may have served at its request as a director or officer of another corporation in which this Corporation owns shares of capital stock, or of which it is a creditor, against any liabilities arising, and in connection with, expenses actually and necessarily incurred by them with the defense of any claim, action, suit, or proceeding, civil or criminal, which they or any of them are made party, by reason of being or having been a director or officer, except in relation to matters as to which any director or officer shall be adjudged in such action, suit, or proceeding to be liable for negligence or misconduct in the performance of duty. Such indemnification shall not be deemed to be exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders, or otherwise.
 
ARTICLE V. OFFICERS
 
Section 1.     NUMBER , The officers of the Corporation shall be a president, one (1) or more vice presidents (the number thereof to be determined by the Board of Directors), a secretary, and a treasurer, each of whom shall be elected by the Board of Directors, Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the Board of Directors. Any two (2) or more offices may be held by the same person.
 
Section 2.     ELECTION AND TERM OF OFFICE . The officers of the Corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the stockholders. If the election of officers is not held at such meeting, the election shall be held as soon thereafter as is convenient.
 
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Each officer shall hold office until his/her successor is duly elected and qualified, or until his/her death, or until he/she resigns or is removed in the manner hereinafter provided.
 
Section 3.     REMOVAL . Any officer or agent may be removed by the Board of Directors whenever, in its judgment, the best Interests of the Corporation are served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of any officer or agent shall not of itself create contract rights.
 
Section 4.     VACANCIES . A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors for the unexpired portion of the term.
 
Section 5.     PRESIDENT . The president shall be the principal executive officer of the Corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the Corporation. He/she shall, when present, preside at all meetings of the stockholders and of the Board of Directors. He/she may sign certificates for shares of the Corporation, any deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time.
 
Section 6.     THE VICE-PRESIDENTS . In the absence of the president or in the event of his/her death or inability or refusal to act, the executive vice president or the vice president (or in the event there be more than one (1) vice president, the vice presidents in the order designated at the time of their election, 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. Any vice president may sign, with the secretary or an assistant secretary, certificates for shares of the Corporation; and shall perform such other duties as from time to time may be assigned to him/her by the president or by the Board of Directors.
 
Section 7.     THE SECRETARY . The secretary shall:
(a) keep the minutes of the proceedings of the stockholders and of the Board of Directors in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation and see that the seal of the Corporation is affixed to all documents authorized to be executed on behalf of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) sign with the president, or a vice president, certificates for shares of the Corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the Corporation; and (g) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him/her by the president or by the Board of Directors.
 
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Section 8.               THE TREASURER . If required by the Board of Directors, the treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the Corporation; (b) receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, and deposit all such moneys in the name of the Corporation in such banks, trust companies, or other depositories as shall be selected in accordance with the provisions of Article V of these Bylaws; and (c) in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him/her by the president or by the Board of Directors.
 
Section 9.               SALARIES . The salaries of the officers shall be fixed periodically by the Board of Directors, and no officer shall be prevented from receiving such salary by reason of the fact that he/she is also a director of the Corporation.
 
ARTICLE VI. CONTRACTS, LOANS,
CHECKS AND DEPOSITS
 
Section 1.               CONTRACTS . The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
 
Section 2.               LOANS . No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
 
Section 3.               CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for the payment of money, notes, or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner as shall periodically be determined by resolution of the Board of Directors, but, at a minimum, two officers must sign each evidence of indebtedness.
 
Section 4.               DEPOSITS . All funds of the Corporation not otherwise employed shall be periodically deposited to the credit of the Corporation in such banks, trust companies, or other depositories as the Board of Directors may select.
 
ARTICLE VII. CERTIFICATES FOR SHARES AND TRANSFER
 
Section 1.               CERTIFICATES FOR SHARES . Certificates representing shares of the Corporation shall be in a form determined by the Board of Directors. Such certificates shall be signed by the president or vice president and by the secretary or an assistant secretary and sealed with the corporate seal or a facsimile thereof. The signatures of such officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the Corporation itself or one of its employees. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the Corporation. All certificates surrendered to the Corporation for transfer shall be canceled and no new certificate shall be issued until the former
 
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certificate for a like number of shares is surrendered and canceled, except that in case of a lost, destroyed, or mutilated certificate, a new one may be issued therefore upon such terms and indemnity to the Corporation as the Board of Directors may prescribe.
 
Section 2.               TRANSFER OF SHARES . Transfer of shares of the Corporation shall be made only on the stock transfer books of the Corporation by the holder of record thereof or its legal representative, who shall furnish proper evidence of authority to transfer, or by his/her attorney authorized by power of attorney duly executed and filed with the secretary of the Corporation, and on surrender for cancellation of the certificate for such shares. The person in whose name shares stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes.
 
ARTICLE VIII. FISCAL YEAR
 
The fiscal year of the Corporation shall begin on the 1 st  day of October and end of the 30 th  day of September of each year.
 
ARTICLE IX. DIVIDENDS
 
The Board of Directors may periodically declare and the Corporation may pay dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its Articles of Incorporation, or any amendment or restatement thereof.
 
ARTICLE X. CORPORATE SEAL
 
The Board of Directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the Corporation and the state of incorporation and the words, “Corporate Seal.”
 
ARTICLE XI. WAIVER OF NOTICE
 
Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of these Bylaws or under the provisions of the Articles of Incorporation or under the provisions of the South Dakota Business Corporation Act, a waiver thereof, in writing and signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
 
ARTICLE XII. AMENDMENTS
 
These Bylaws may be altered, amended, or repealed, and new bylaws may be adopted by the Board of Directors at any regular or special meeting of the Board of Directors.
 
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ARTICLE XIII. EXECUTIVE COMMITTEE
 
Section 1:              APPOINTMENT. The Board of Directors, by resolution adopted by a majority of the full Board, may designate two or more of its members to constitute an Executive Committee. The designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.
 
Section 2:              AUTHORITY. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all of the authority of the Board of Directors except to the extent, if any, that such authority may be limited by the resolution appointing the Executive Committee and except also that the Executive Committee shall not have the authority of the Board of Directors in reference to amending the articles of incorporation, adopting a plan of merger or consolidation, recommending to the shareholders the sale, lease, or other disposition of all or substantially all of the property and assets of the Corporation otherwise than in the usual and regular course of its business, recommending to the shareholders a voluntary dissolution of the Corporation or a revocation thereof, or amending the bylaws of the Corporation.
 
Section 3:              TENURE AND QUALIFICATIONS. Each member of the Executive Committee shall hold office until the next regular annual meeting of the Board of Directors following his designation and until his successor is designated as a member of the Executive Committee and is elected and qualified.
 
Section 4:              MEETINGS. Regular meetings of the Executive Committee may be held after notice to all shareholders, said shareholders having the right to attend said meeting, at such times and places as the Executive Committee may fix from time to time by resolution. Special meetings of the Executive Committee may be called by any member thereof upon not less than one day’s notice stating the place, date, and hour of the meeting, which notice may be written or oral, and if mailed, shall be deemed to be delivered when deposited in the United States mail addressed to the members of the Executive Committee at their business address. Any member of the Executive Committee may waive notice of any meeting, and no notice of any meeting need be given to any member thereof who attends in person. The notice of a meeting of the Executive Committee need not state the business proposed to be transacted at the meeting.
 
Section 5:              QUORUM. A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business at any meeting thereof and action of the Executive Committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present.
 
Section 6:              ACTION WITHOUT A MEETING. Any action that may be taken by the Executive Committee at a meeting may be taken without a meeting if a consent in writing setting forth the action so to be taken shall be signed before such action by all of the members of the Executive Committee.
 
Section 7:              VACANCIES. Any vacancy in the Executive Committee may be filled by a resolution adopted by a majority of the full Board of Directors.
 
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Section 8:              RESIGNATIONS AND REMOVAL. Any member of the Executive Committee may be removed at any time with or without cause by resolution adopted by a majority of the full Board of Directors. Any member of the Executive Committee may resign from the Executive Committee at any time by giving written notice to the President or Secretary of the Corporation, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
 
Section 9:              PROCEDURE. The Executive Committee shall elect a presiding officer from its members and may fix its own rules or procedure which shall not be inconsistent with these Bylaws. It shall keep regular minutes of its proceedings and report the same to the Board of Directors for its information at the meeting thereof held next after the proceeding shall have been taken.
 
ARTICLE XIV. MANAGEMENT COMMITTEE
 
Section 1:              The Board of Directors by resolution adopted by a majority of the Board, may designate one or more of its members and one or more of the Corporation’s key management employees to constitute a Management Committee. The designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.
 
Section 2:              The Management Committee shall operate in an advisory capacity to the Board of Directors concerning the general supervision and control of all of the business affairs of the Corporation.
 
Section 3:              Each member of the Management Committee shall hold office until the next annual meeting of the Board of Directors following his/her designation and until his/her successor is designated as a member of the Management Committee and is elected and qualified.
 
Section 4:              Any vacancy in the Management Committee may be filled by a resolution adopted by a majority of the Board of Directors.
 
Section 5:              Any member of the Management Committee may be removed at any time with or without cause by resolution adopted by the Board of Directors. Any member of the Management Committee may resign from the Management Committee at any time by giving written notice to the President or Secretary of the Corporation and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
 
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KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned officers and directors of RCC Western Stores, Inc. do hereby certify that the foregoing Amended Bylaws were duly adopted as the Bylaws of the Corporation on May 1, 2009, and that the same do now constitute the Bylaws of said Corporation.

 	/s/ Robert L. Hoover, President	
 	Robert L. Hoover, President	
 	 	
 	/s/ Sandra K. Hoover, Director	
 	Sandra K. Hoover, Director	
 	 	
 	/s/ [ILLEGIBLE]	
 	[ILLEGIBLE], Director	

ATTEST:	 	
 	 	
/s/ Sandra K. Hoover, Secretary	 	
Sandra K. Hoover, Secretary	 	
 	 	
(SEAL)	 	

12 

 
AMENDMENT TO THE BYLAWS OF RCC WESTERN STORES, INC.
 
The Bylaws of RCC Western Stores, Inc., adopted August 26, 1988, and amended on August 28, 1990, September 1, 1990, and May 1, 2000, are hereby amended as follows:
 
ARTICLE XIII.           MANAGEMENT COMMITTEE
 
Section 1.                    The Board of Directors by resolution adopted by a majority of the full board, may designate one or more of its members and one or more of the corporation’s key management employees to constitute a Management Committee. The designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.
 
Section 2.                    The Management Committee shall operate in an advisory capacity to the Board of Directors concerning the general supervision and control of all of the business affairs of the corporation.
 
Section 3.                    Each member of the Management Committee shall hold office until the next annual meeting of the Board of Directors following his/her designation and until his/her successor is designated as a member of the Management Committee and is elected and qualified.
 
Section 4.                    Any vacancy in the Management Committee may be filled by a resolution adopted by a majority of the full Board of Directors.
 
Section 5.                    Any member of the Management Committee may be removed at any time with or without cause by resolution adopted by the full Board of Directors. Any member of the Management Committee may resign from the Management Committee at any time by giving written notice to the President or the Secretary of the corporation, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 
AMENDMENT TO THE BYLAWS OF RCC WESTERN STORES, INC.
 
The Bylaws of RCC Western Stores, Inc., adopted August 26, 1988, and amended on August 28, 1990, and September 1, 1990, are hereby amended as follows:
 
ARTICLE VI.                     CERTIFICATES FOR SHARES AND THEIR TRANSFER
 
Section 3.               TRANSFER RESTRICTION. There shall be a restriction upon the transfer of said stock as follows:
 
In the event any shareholder shall hold such shares at the time of the adoption of the Bylaws or who shall subsequently become a shareholder of the corporation, shall desire to sell, assign, transfer, or otherwise dispose of his or her stock certificate(s), he or she, or the personal representative in the case of a deceased shareholder, shall first offer in writing the stock certificate(s) for sale to the corporation, and the corporation shall have the first right to purchase the same if it will pay a price therefor equal to the bona fide price offered by others. In the event the corporation declines to exercise its right or fails to purchase such stock certificate(s), it shall next be offered in writing to the next existing shareholders of the corporation who shall have the next right to purchase the same at a price equal to any bona fide offer of price made by others. Only in the event neither the corporation nor the existing shareholders shall purchase such stock certificate(s) may the same be offered for sale and sold elsewhere. In any event, if neither the corporation nor any other shareholders exercise the right to purchase the stock certificate(s) within a period of sixty (60) days from the date of the written offer to sell, such stock certificate(s) may be sold and transferred to persons other than this corporation or the existing shareholders of this corporation.
 
Such restriction shall be placed on the reverse side of any stock certificates issued by the corporation.

Exhibit 3.9
 
Delaware
 
The First State
 
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “SHEPLERS HOLDING CORPORATION” AS RECEIVED AND FILED IN THIS OFFICE.
 
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
 
CERTIFICATE OF INCORPORATION, FILED THE FIRST DAY OF JUNE, A.D. 2007, AT 6:02 O’CLOCK P.M.
 
RESTATED CERTIFICATE, FILED THE TWENTY — SEVENTH DAY OF JULY, A.D. 2007, AT 6:41 O’CLOCK P.M.
 
RESTATED CERTIFICATE, FILED THE THIRTIETH DAY OF JULY, A.D. 2007, AT 8:18 O’CLOCK A.M.
 
RESTATED CERTIFICATE, FILED THE THIRTY-FIRST DAY OF OCTOBER, A.D. 2008, AT 2:24 O’CLOCK P.M.
 
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “SHEPLERS HOLDING CORPORATION”.

 		/s/ Jeffrey W. Bullock	
 		Jeffrey W. Bullock, Secretary of State	
 	4363166 8100H		AUTHENTICATION: 9158981	
 	 		 	
 	111199539		DATE: 11-15-11	
You may verify this certificate online
at corp. delaware.gov/authver.shtml	 	 	

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 	 	State of Delaware
Secretary of State
Division of Corporations
Delivered 06:38 PM 06/01/2007
FILED 06:02 PM 06/01/2007
SRV 070665777 - 4363166 FILE	
 
CERTIFICATE OF INCORPORATION
 
OF
 
SHEPLERS HOLDING CORPORATION
 
ARTICLE ONE
 
The name of the corporation is Sheplers Holding Corporation.
 
ARTICLE TWO
 
The address of the corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.
 
ARTICLE THREE
 
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
 
ARTICLE FOUR
 
The total number of shares of stock which the corporation has authority to issue is one thousand (1,000) shares of Common Stock, with a par value of $0.01 per share.
 
ARTICLE FIVE
 
The name and mailing address of the sole incorporator are as follows:

NAME	 	MAILING ADDRESS	
Howard P. Young	 	c/o Kirkland & Ellis LLP	
 	 	555 California Street, 27 th  Floor	
 	 	San Francisco, CA 94104	

 
ARTICLE SIX
 
The corporation is to have perpetual existence.
 
ARTICLE SEVEN
 
In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation.
 
ARTICLE EIGHT
 
Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide.
 
ARTICLE NINE
 
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this corporation shall not be liable to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.
 
ARTICLE TEN
 
The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
 
ARTICLE ELEVEN
 
The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
 
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I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts stated herein are true, and accordingly have hereunto set my hand on the 1st day of June, 2007.

 	/s/ Howard P. Young	
 	Howard P. Young	
 	Sole Incorporator	
 
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 	 	State of Delaware
Secretary of State
Division of Corporations
Delivered 06:44 PM 07/27/2007
FILED 06:41 PM 07/27/2007
SRV 070864400 - 4363166 FILE	
 
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
SHEPLERS HOLDING CORPORATION
 
**********
 
Adapted in accordance with the provisions of Section 241 and Section 245 of the General Corporation Law of the State of Delaware.
 
**********
 
The undersigned, being the President of Sheplers Holding Corporation, a Delaware corporation (the “Corporation”), hereby certifies as follows:
 
I.                                         The name of the Corporation is Sheplers Holding Corporation. The date of filing of its original certificate of incorporation with the Delaware Secretary of State was June 1, 2007.
 
II.                                    This amended and restated certificate of incorporation amends, restates and integrates the provisions of the certificate of incorporation of the Corporation and has been duly adopted in accordance with the provisions of Sections 241 and 245 of the General Corporation Law of the State of Delaware.
 
III .                               The Corporation has not received payment of any of its stock.
 
IV.                                The text of the certificate of incorporation is hereby amended and restated to read herein as set forth in full:
 
ARTICLE ONE
 
The name of the corporation is Sheplers Holding Corporation (the “Corporation”).
 
ARTICLE TWO
 
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
 
ARTICLE THREE
 
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

 
ARTICLE FOUR
 
Part A. Authorized Shares . The total number of shares of capital stock which the Corporation has authority to issue is 300,000 shares, consisting of:
 
1.                    250,000 shares of Class A Common Stock, with a par value of $0.001 per share (“Class A Common”); and
 
2.                    50,000 shares of Class L Common Stock, with a par value of $0.001 per share (“Class L Common”).
 
The Class L Common and the Class A Common, and any other common stock issued hereafter are referred to collectively as the “ Common Stock .” The Common Stock shall have the rights, preferences and limitations set forth below. Capitalized terms used but not otherwise defined in Part A or Part B of this Article Four are defined in Part C.
 
Part B. Common Stock.
 
Except as otherwise provided in this Part B or as otherwise required by applicable law, all shares of Class L Common and Class A Common shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications, limitations and restrictions.
 
1.                                       Voting Rights. Except as otherwise provided in this Part B or as otherwise required by applicable law, the holders of Class A Common shall be entitled to one vote per share on all matters to be voted on by the Corporation’s stockholders, and the holders of Class L Common shall have no right to vote on any matters to be voted on by the stockholders of the Corporation.
 
2.                                       Distribution. At the time of each Distribution, such Distribution shall be made to the holders of the Class L Common and Class A Common in the following priority:
 
(a)                                  The holders of the Class L Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the aggregate Unpaid Yield on the outstanding shares of Class L Common held by such holder as compared to the aggregate Unpaid Yield on all shares of Class L Common then outstanding as of the time of such Distribution) equal to the aggregate Unpaid Yield on the outstanding shares of Class L Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraphs 2(b) or (c) below until the entire amount of the Unpaid Yield on the outstanding shares of Class L Common as of time of such Distribution has been paid in full. The Distributions made pursuant to this paragraph 2(a) to the holders of the Class L Common shall constitute a payment of Yield on Class L Common.
 
(b)                                  After the required amount of a Distribution has been made in full pursuant to paragraph 2(a) above, the holders of Class L Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the number of shares of Class L Common held by each such holder as of the time of such Distribution) equal to the aggregate
 
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Unreturned Original Cost of the outstanding shares of Class L Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraph 2(c) below until the entire amount of the Unreturned Original Cost of the outstanding shares of Class L Common as of the time of such Distribution has been paid in full. The Distributions made pursuant to this paragraph 2(b) to holders of Class L Common shall constitute a return of Original Cost of Class L Common.
 
(c)                                   After the required amount of a Distribution has been made pursuant to paragraphs 2(a) and (b) above, the holders of Common Stock as a group, shall be entitled to receive the remaining portion of such Distribution (ratably among such holders based upon the number of shares of Common Stock held by each such holder as of the time of such Distribution),
 
3.                                       Stock Splits and Stock Dividends. The Corporation shall not in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by stock split, stock dividend or otherwise) the outstanding Common Stock of one class unless the outstanding Common Stock of the other classes shall be proportionately subdivided or combined. All such subdivisions and combinations shall be payable only in shares of Class L Common to the holders of Class L Common and in shares of Class A Common to the holders of Class A Common. In no event shall a stock split or stock dividend constitute a payment of Yield or a return of Original Cost.
 
4.                                       Approval Rights. The Corporation shall not enter into any agreement which would result in, or consummate any transaction resulting in, a Change of Control or an Initial Public Offering without the prior written consent of the holders of a majority of the then outstanding shares of Class L Common.
 
5.                                       Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of the Common Stock. Upon the surrender of any certificate representing shares of any class of Common Stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate, or certificates in exchange therefor (either of the same class, or as directed by the holder in connection with a conversion from one class to another) representing in the aggregate the number of shares of such class represented by the surrendered certificate and the Corporation forthwith shall cancel such surrendered certificate. Each such new certificate will be registered in such name and will represent such number of shares of such class as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate. The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance.
 
6.                                       Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any class of Common Stock, and in the case of any such loss, theft or destruction upon receipt of indemnity reasonably satisfactory to the Corporation, or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class
 
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represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
 
7.                                       Notices. All notices referred to herein shall be in writing, shall be delivered personally or by first class mail, postage prepaid, and shall be deemed to have been given when so delivered or mailed to the Corporation at its principal executive offices and to any stockholder at such holder’s address as it appears in the stock records of the Corporation (unless otherwise specified in a written notice to the Corporation by such holder).
 
8.                                       Amendment and Waiver. No amendment or waiver of any provision of this Article IV shall be effective without the prior written consent of the holders of not less than a majority of the then outstanding Class A Common voting as a single class; provided that no amendment as to any terms or provisions of, or for the benefit of, any class of Common Stock that adversely affects the powers, preferences or special rights of such class of Common Stock shall be effective without the prior consent of the holders of a majority of the then outstanding shares of such affected class of Common Stock, as the case may be, voting as a single class.
 
Part C. Definitions .
 
“ Affiliate ” means with respect to any Person, each other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, the ability to direct or cause the direction of the management and policies of such Person whether by ownership of voting securities, contract or otherwise.
 
“ Change of Control ” means any transaction, sale, event or circumstance (other than an Initial Public Offering) which results in a Person or Persons other than Gryphon Partners III, L.P., Gryphon Partners III-A, L.P., Gryphon Co-Invest Fund III, L.P., Gryphon Partners III-C Annex Fund, L.P. or their Affiliates owning a majority of the capital stock possessing the voting power under normal circumstances to elect a majority of the board of directors of the Corporation.
 
“ Distribution ” means each distribution made by the Corporation to holders of capital stock, whether in cash, property, or securities of the Corporation and whether by dividend, liquidating distributions or otherwise; provided that none of the following shall be a Distribution: (a) any redemption or repurchase by the Corporation of any capital stock held by an employee, director or former employee or director of the Corporation or any of its subsidiaries or (b) any recapitalization or exchange of any capital stock, or any subdivision (by stock split, stock dividend or otherwise) or any combination (by stock split, stock dividend or otherwise) of any outstanding shares of capital stock.
 
“ Initial Public Offering ” means an initial public offering by the Corporation of its capital stock to the public effected pursuant to an effective registration statement under the Securities Act of 1933, as amended or any comparable statement under any similar United States federal statute then in effect.
 
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“ Original Cost ” of each share of Class L Common shall be equal to $1,000.00 (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Class L Common).
 
“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a government or any branch, department, agency, political subdivision or official thereof.
 
“ Unpaid Yield ” of any share of Class L Common means an amount equal to the excess, if any, of (a) the aggregate Yield accrued on such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a payment of Yield on such share.
 
“ Unreturned Original Cost ” of any share of Class L Common means an amount equal to the excess, if any, of (a) the Original Cost of such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a return of Original Cost of such share.
 
“ Yield ” means (i) with respect to each share of Class L Common, for each calendar quarter, the amount accruing on such share each day during such quarter at a rate of 15% per annum of the sum of (a) such share’s Unreturned Original Cost, plus (b) Unpaid Yield thereon for all prior quarters. In calculating the amount of any Distribution to be made during a calendar quarter, the portion of a Class L Common share’s Yield for such portion of such quarter elapsing before such Distribution is made shall be taken into account.
 
ARTICLE FIVE
 
The Corporation is to have perpetual existence.
 
ARTICLE SIX
 
In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation.
 
ARTICLE SEVEN
 
Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of director or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.
 
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ARTICLE EIGHT
 
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of director of the Corporation existing at the time of such repeal or modification.
 
ARTICLE NINE
 
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
 
ARTICLE TEN
 
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
 
6 

 
IN WITNESS WHEREOF, I have signed this Amended and Restated Certificate of Incorporation Before Payment of Capital of the Corporation this 27th day of July, 2007.

 	/s/ Kurtis Kaull	
 	Kurtis Kaull	
 	President	
 
{Sheplers Holding Corporation - Amended and Restated Certificate of Incorporation}
 
S- 1 

 	 	State of Delaware
Secretary of State
Division of Corporations
Delivered 08:24 AM 07/30/2007
FILED 08:18 AM 07/30/2007
SRV 070864785 - 4363166 FILE	
 
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
SHEPLERS HOLDING CORPORATION
 
**********
 
Adapted in accordance with the provisions of Section 241 and Section 245 of the General Corporation Law of the State of Delaware.
 
**********
 
The undersigned, being the President of Sheplers Holding Corporation, a Delaware corporation (the “Corporation”), hereby certifies as follows:
 
I.             The name of the Corporation is Sheplers Holding Corporation. The date of filing of its original certificate of incorporation with the Delaware Secretary of State was June 1, 2007. The Corporation filed an amended and restated certificate of incorporation with the Delaware Secretary of State on July 27, 2007.
 
II.            This amended and restated certificate of incorporation amends, restates and integrates the provisions of the certificate of incorporation of the Corporation and has been duly adopted in accordance with the provisions of Sections 241 and 245 of the General Corporation Law of the State of Delaware.
 
III.          The Corporation has not received payment of any of its stock.
 
IV.          The text of the certificate of incorporation is hereby amended and restated to read herein as set forth in full:
 
ARTICLE ONE
 
The name of the corporation is Sheplers Holding Corporation (the “Corporation”).
 
ARTICLE TWO
 
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
 
ARTICLE THREE
 
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

 
ARTICLE FOUR
 
Part A. Authorized Shares. The total number of shares of capital stock which the Corporation has authority to issue is 500,000 shares, consisting of:
 
1.                    450,000 shares of Class A Common Stock, with a par value of $0.001 per share (“Class A Common”); and
 
2.                    50,000 shares of Class L Common Stock, with a par value of $0.001 per share (“Class L Common”).
 
The Class L Common and the Class A Common, and any other common stock issued hereafter are referred to collectively as the “ Common Stock .” The Common Stock shall have the rights, preferences and limitations set forth below. Capitalized terms used but not otherwise defined in Part A or Part B of this Article Four are defined in Part C.
 
Part B. Common Stock.
 
Except as otherwise provided in this Part B or as otherwise required by applicable law, all shares of Class L Common and Class A Common shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications, limitations and restrictions.
 
1.             Voting Rights. Except as otherwise provided in this Part B or as otherwise required by applicable law, the holders of Class A Common shall be entitled to one vote per share on all matters to be voted on by the Corporation’s stockholders, and the holders of Class L Common shall have no right to vote on any matters to be voted on by the stockholders of the Corporation.
 
2.             Distribution. At the time of each Distribution, such Distribution shall be made to the holders of the Class L Common and Class A Common in the following priority:
 
(a)           The holders of the Class L Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the aggregate Unpaid Yield on the outstanding shares of Class L Common held by such holder as compared to the aggregate Unpaid Yield on all shares of Class L Common then outstanding as of the time of such Distribution) equal to the aggregate Unpaid Yield on the outstanding shares of Class L Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraphs 2(b) or (c) below until the entire amount of the Unpaid Yield on the outstanding shares of Class L Common as of time of such Distribution has been paid in full. The Distributions made pursuant to this paragraph 2(a) to the holders of the Class L Common shall constitute a payment of Yield on Class L Common.
 
(b)           After the required amount of a Distribution has been made in full pursuant to paragraph 2(a) above, the holders of Class L Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the number of shares of Class L Common held by each such holder as of the time of such Distribution) equal to the aggregate
 
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Unreturned Original Cost of the outstanding shares of Class L Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraph 2(c) below until the entire amount of the Unreturned Original Cost of the outstanding shares of Class L Common as of the time of such Distribution has been paid in full. The Distributions made pursuant to this paragraph 2(b) to holders of Class L Common shall constitute a return of Original Cost of Class L Common.
 
(c)           After the required amount of a Distribution has been made pursuant to paragraphs 2(a) and (b) above, the holders of Common Stock as a group, shall be entitled to receive the remaining portion of such Distribution (ratably among such holders based upon the number of shares of Common Stock held by each such holder as of the time of such Distribution).
 
3.             Stock Splits and Stock Dividends. The Corporation shall not in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by stock split, stock dividend or otherwise) the outstanding Common Stock of one class unless the outstanding Common Stock of the other classes shall be proportionately subdivided or combined. All such subdivisions and combinations shall be payable only in shares of Class L Common to the holders of Class L Common and in shares of Class A Common to the holders of Class A Common. In no event shall a stock split or stock dividend constitute a payment of Yield or a return of Original Cost.
 
4.             Approval Rights. The Corporation shall not enter into any agreement which would result in, or consummate any transaction resulting in, a Change of Control or an Initial Public Offering without the prior written consent of the holders of a majority of the then outstanding shares of Class L Common.
 
5.             Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of the Common Stock. Upon the surrender of any certificate representing shares of any class of Common Stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate, or certificates in exchange therefor (either of the same class, or as directed by the holder in connection with a conversion from one class to another) representing in the aggregate the number of shares of such class represented by the surrendered certificate and the Corporation forthwith shall cancel such surrendered certificate. Each such new certificate will be registered in such name and will represent such number of shares of such class as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate. The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance.
 
6.             Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any class of Common Stock, and in the case of any such loss, theft or destruction upon receipt of indemnity reasonably satisfactory to the Corporation, or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class
 
3 

 
represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
 
7.             Notices. All notices referred to herein shall be in writing, shall be delivered personally or by first class mail, postage prepaid, and shall be deemed to have been given when so delivered or mailed to the Corporation at its principal executive offices and to any stockholder at such holder’s address as it appears in the stock records of the Corporation (unless otherwise specified in a written notice to the Corporation by such holder).
 
8.             Amendment and Waiver. No amendment or waiver of any provision of this Article IV shall be effective without the prior written consent of the holders of not less than a majority of the then outstanding Class A Common voting as a single class; provided that no amendment as to any terms or provisions of, or for the benefit of, any class of Common Stock that adversely affects the powers, preferences or special rights of such class of Common Stock shall be effective without the prior consent of the holders of a majority of the then outstanding shares of such affected class of Common Stock, as the case may be, voting as a single class.
 
Part C. Definitions .
 
“ Affiliate ” means with respect to any Person, each other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, the ability to direct or cause the direction of the management and policies of such Person whether by ownership of voting securities, contract or otherwise.
 
“ Change of Control ” means any transaction, sale, event or circumstance (other than an Initial Public Offering) which results in a Person or Persons other than Gryphon Partners III, L.P., Gryphon Partners III-A, L.P., Gryphon Partners III-B, L.P., Gryphon Co-Invest Fund III, L.P., Gryphon Partners III-C Annex Fund, L.P. or their Affiliates owning a majority of the capital stock possessing the voting power under normal circumstances to elect a majority of the board of directors of the Corporation.
 
“ Distribution ” means each distribution made by the Corporation to holders of capital stock, whether in cash, property, or securities of the Corporation and whether by dividend, liquidating distributions or otherwise; provided that none of the following shall be a Distribution: (a) any redemption or repurchase by the Corporation of any capital stock held by an employee, director or former employee or director of the Corporation or any of its subsidiaries or (b) any recapitalization or exchange of any capital stock, or any subdivision (by stock split, stock dividend or otherwise) or any combination (by stock split, stock dividend or otherwise) of any outstanding shares of capital stock.
 
“ Initial Public Offering ” means an initial public offering by the Corporation of its capital stock to the public effected pursuant to an effective registration statement under the Securities Act of 1933, as amended or any comparable statement under any similar United States federal statute then in effect.
 
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“ Original Cost ” of each share of Class L Common shall be equal to $1,000.00 (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Class L Common).
 
“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a government or any branch, department, agency, political subdivision or official thereof.
 
“ Unpaid Yield ” of any share of Class L Common means an amount equal to the excess, if any, of (a) the aggregate Yield accrued on such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a payment of Yield on such share.
 
“ Unreturned Original Cost ” of any share of Class L Common means an amount equal to the excess, if any, of (a) the Original Cost of such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a return of Original Cost of such share.
 
“ Yield ” means (i) with respect to each share of Class L Common, for each calendar quarter, the amount accruing on such share each day during such quarter at a rate of 15% per annum of the sum of (a) such share’s Unreturned Original Cost, plus (b) Unpaid Yield thereon for all prior quarters. In calculating the amount of any Distribution to be made during a calendar quarter, the portion of a Class L Common share’s Yield for such portion of such quarter elapsing before such Distribution is made shall be taken into account.
 
ARTICLE FIVE
 
The Corporation is to have perpetual existence.
 
ARTICLE SIX
 
In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation.
 
ARTICLE SEVEN
 
Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of director or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.
 
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ARTICLE EIGHT
 
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of director of the Corporation existing at the time of such repeal or modification.
 
ARTICLE NINE
 
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
 
ARTICLE TEN
 
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
 
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IN WITNESS WHEREOF, I have signed this Amended and Restated Certificate of Incorporation Before Payment of Capital of the Corporation this 30th day of July, 2007.

 	/s/ Kurtis Kaull	
 	Kurtis Kaull	
 	President	

{Sheplers Holding Corporation - Amended and Restated Certificate of Incorporation}
 
S- 1 

 	State of Delaware	
 	Secretary of State	
 	Division of Corporations	
 	Delivered 02:50 PM 10/31/2008	
 	FILED 02:24 PM 10/31/2008	
 	SRV 081083805 - 4363166 FILE	
 
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SHEPLERS HOLDING CORPORATION
 
**********
 
Adopted in accordance with the provisions of Section 242 and Section 245 of the General Corporation Law of the State of Delaware.
 
**********
 
The undersigned, being the duly elected Vice President, Treasurer and Secretary of Sheplers Holding Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:
 
I.                                         That the Corporation filed (a) its original certificate of incorporation on June 1, 2007, (b) an Amended and Restated Certificate of Incorporation Before Payment of Capital on July 27, 2007, and (c) a Second Amended and Restated Certificate of Incorporation Before Payment of Capital on July 30, 2007 (as amended and restated, the “Certificate”), each with the Secretary of State of Delaware.
 
II.                                    That the Board of Directors of the Corporation, pursuant to written consent, adopted resolutions authorizing the Corporation to amend, integrate and restate the Corporation’s Certificate in its entirety to read as set forth in Exhibit A attached hereto and made a part hereof (the “Restated Certificate”).
 
III.                               That (a) at least a majority of the issued and outstanding shares of the Class L Common Stock, par value $0.001 per share (“Class L Common”) and Class A Common, par value $0.001 per share (“Class A Common”) of the Corporation entitled to vote thereon, voting together as a class; (b) at least a majority of the issued and outstanding shares of the Class L Common entitled to vote thereon, voting separately as a class; and (c) at least a majority of the issued and outstanding shares of the Class A Common entitled to vote thereon, voting separately as a class, pursuant to written consent, approved and adopted the Restated Certificate in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware. Written notice has been given to the holders that have not consented in writing.
 
IV.                                That immediately prior to the filing of the Restated Certificate, the Corporation’s issued and outstanding capital stock consisted of 284,667.35 shares of Class A Common and 28,487.23 shares of Class L Common. Upon the filing of the Restated Certificate, the certificates representing Class A Common and Class L Common issued and outstanding that were issued prior to the filing of the Restated Certificate, unless and until surrendered to the Corporation, shall represent the same number of Class A Common and Class L Common issued and outstanding after giving effect to the filing of the Restated Certificate.

 
IN WITNESS WHEREOF, the undersigned, being the Vice President, Treasurer and Secretary herein above named, for the purpose of amending and restating the Certificate of the Corporation, pursuant to the General Corporation Law of the State of Delaware, under penalties of perjury, does hereby declare and certify that this is the act and deed of the Corporation and the facts stated herein are true, and accordingly has hereunto signed this Third Amended and Restated Certificate of Incorporation this 31st day of October, 2008.

 	/s/Kurtis Kaull	
 	Kurtis Kaull	
 	Vice President, Treasurer and Secretary	
 
2 

Exhibit A
 
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SHEPLERS HOLDING CORPORATION
 
**********
 
Adopted in accordance with the provisions of Section 241 and Section 245 of the General Corporation Law of the State of Delaware.
 
ARTICLE ONE
 
The name of the corporation is Sheplers Holding Corporation (the “Corporation”).
 
ARTICLE TWO
 
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
 
ARTICLE THREE
 
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
 
ARTICLE FOUR
 
Part A. Authorized Shares. The total number of shares of capital stock which the Corporation has authority to issue is 600,000 shares, consisting of:
 
1.               450,000 shares of Class A Common Stock, with a par value of $0.001 per share (“Class A Common”);
 
2.               50,000 shares of Class L Common Stock, with a par value of $0.001 per share (“Class L Common”); and
 
3.               100,000 shares of Class L-1 Common Stock, with a par value of $0.001 per share (“Class L-1 Common”).
 
The Class L-1 Common, Class L Common and the Class A Common, and any other common stock issued hereafter are referred to collectively as the “ Common Stock .” Capitalized terms used but not otherwise defined in Part A or Part B of this Article Four are defined in Part C.

 
Part B. Common Stock.
 
Except as otherwise provided in this Part B or as otherwise required by applicable law, all shares of Class L-1 Common, Class L Common and Class A Common shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications, limitations and restrictions.
 
1.                                       Voting Rights. Except as otherwise provided in this Part B or as otherwise required by applicable law, the holders of Class A Common shall be entitled to one vote per share on all matters to be voted on by the Corporation’s stockholders, and the holders of Class L-1 Common and Class L Common shall have no right to vote on any matters to be voted on by the stockholders of the Corporation.
 
2.                                       Distribution. At the time of each Distribution, such Distribution shall be made to the holders of Class L-1 Common, Class L Common and Class A Common in the following priority:
 
(a)                                  The holders of Class L-1 Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the number of shares of Class L-1 Common held by each such holder as of the time of such Distribution) equal to the aggregate Unreturned Class L-1 Liquidation Preference of the outstanding shares of Class L-1 Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraphs 2(b), 2(c) or 2(d) below until the entire amount of the Unreturned Class L-1 Liquidation Preference of the outstanding shares of Class L-1 Common as of the time of such Distribution has been paid in full.
 
(b)                                  After the required amount of a Distribution has been made in full pursuant to paragraph 2(a) above, the holders of the Class L Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the aggregate Unpaid Yield on the outstanding shares of Class L Common held by such holder as compared to the aggregate Unpaid Yield on all shares of Class L Common then outstanding as of the time of such Distribution) equal to the aggregate Unpaid Yield on the outstanding shares of Class L Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraphs 2(c) or 2(d) below until the entire amount of the Unpaid Yield on the outstanding shares of Class L Common as of time of such Distribution has been paid in full. The Distributions made pursuant to this paragraph 2(b) to the holders of the Class L Common shall constitute a payment of Yield on Class L Common.
 
(c)                                   After the required amount of a Distribution has been made in full pursuant to paragraphs 2(a) and 2(b) above, the holders of Class L Common shall be entitled to receive all or a portion of such Distribution (ratably among such holders based upon the number of shares of Class L Common held by each such holder as of the time of such Distribution) equal to the aggregate Unreturned Original Cost of the outstanding shares of Class L Common as of the time of such Distribution, and no Distribution or any portion thereof shall be made under paragraph 2(d) below until the entire amount of the Unreturned Original Cost of the outstanding shares of Class L Common as of the time of such Distribution has been paid in full. The Distributions
 
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made pursuant to this paragraph 2(c) to holders of Class L Common shall constitute a return of Original Cost of Class L Common.
 
(d)                                  After the required amount of a Distribution has been made pursuant to paragraphs 2(a), 2(b) and 2(c) above, the holders of Common Stock as a group, shall be entitled to receive the remaining portion of such Distribution (ratably among such holders based upon the number of shares of Common Stock held by each such holder as of the time of such Distribution).
 
3.                                       Stock Splits and Stock Dividends. The Corporation shall not in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by stock split, stock dividend or otherwise) the outstanding Common Stock of one class unless the outstanding Common Stock of the other classes shall be proportionately subdivided or combined. All such subdivisions and combinations shall be payable only in shares of Class L-1 to the holders of Class L-1 Common, Class L Common to the holders of Class L Common and in shares of Class A Common to the holders of Class A Common. In no event shall a stock split or stock dividend constitute a payment of Liquidation Preference or Yield or a return of Original Cost.
 
4.                                       Approval Rights. The Corporation shall not enter into any agreement which would result in, or consummate any transaction resulting in, a Change of Control or an Initial Public Offering without the prior written consent of the holders of a majority of the then outstanding shares of Class L-1 Common and Class L Common each voting separately as a class.
 
5.                                       Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of the Common Stock. Upon the surrender of any certificate representing shares of any class of Common Stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate, or certificates in exchange therefor (either of the same class, or as directed by the holder in connection with a conversion from one class to another) representing in the aggregate the number of shares of such class represented by the surrendered certificate and the Corporation forthwith shall cancel such surrendered certificate. Each such new certificate will be registered in such name and will represent such number of shares of such class as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate. The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance.
 
6.                                       Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any class of Common Stock, and in the case of any such loss, theft or destruction upon receipt of indemnity reasonably satisfactory to the Corporation, or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
 
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7.                                       Notices. All notices referred to herein shall be in writing, shall be delivered personally or by first class mail, postage prepaid, and shall be deemed to have been given when so delivered or mailed to the Corporation at its principal executive offices and to any stockholder at such holder’s address as it appears in the stock records of the Corporation (unless otherwise specified in a written notice to the Corporation by such holder).
 
8.                                       Amendment and Waiver. No amendment or waiver of any provision of this Article IV shall be effective without the prior written consent of the holders of not less than a majority of the then outstanding Class A Common voting as a single class; provided that no amendment as to any terms or provisions of, or for the benefit of, any class of Common Stock that adversely affects the powers, preferences or special rights of such class of Common Stock shall be effective without the prior consent of the holders of a majority of the then outstanding shares of such affected class of Common Stock, as the case may be, voting as a single class.
 
Part C. Definitions .
 
“ Affiliate ” means with respect to any Person, each other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be ‘‘controlled by” another Person if such other Person possesses, directly or indirectly, the ability to direct or cause the direction of the management and policies of such Person whether by ownership of voting securities, contract or otherwise.
 
“ Change of Control ” means any transaction, sale, event or circumstance (other than an Initial Public Offering) which results in a Person or Persons other than Gryphon Partners III, L.P., Gryphon Partners III-A, L.P., Gryphon Partners III-B, L.P., Gryphon Co-Invest Fund III, L.P., Gryphon Partners III-C Annex Fund, L.P. or their Affiliates owning a majority of the capital stock possessing the voting power under normal circumstances to elect a majority of the board of directors of the Corporation.
 
“ Class L-1 Liquidation Preference ” of each share of Class L-1 Common shall be equal to $212.65 (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Class L-1 Common).
 
“ Distribution ” means each distribution made by the Corporation to holders of capital stock, whether in cash, property, or securities of the Corporation and whether by dividend, liquidating distributions or otherwise; provided that none of the following shall be a Distribution: (a) any redemption or repurchase by the Corporation of any capital stock held by an employee, director or former employee or director of the Corporation or any of its subsidiaries or (b) any recapitalization or exchange of any capital stock, or any subdivision (by stock split. stock dividend or otherwise) or any combination (by stock split, stock dividend or otherwise) of any outstanding shares of capital stock.
 
“ Initial Public Offering ” means an initial public offering by the Corporation of its capital stock to the public effected pursuant to an effective registration statement under the Securities Act of 1933, as amended or any comparable statement under any similar United States federal statute then in effect.
 
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“ Original Cost ” of each share of Class L Common shall be equal to $1,000.00 (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Class L Common).
 
“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a government or any branch, department, agency, political subdivision or official thereof.
 
“ Unpaid Yield ” of any share of Class L Common means an amount equal to the excess, if any, of (a) the aggregate Yield accrued on such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a payment of Yield on such share.
 
“ Unreturned Class L-1 Liquidation Preference ” of each share of Class L-1 Common means any amount equal to the excess, if any, of the Class L-1 Liquidation Preference of such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a return of Class L-I Liquidation Preference of such share.
 
“ Unreturned Original Cost ” of any share of Class L Common means an amount equal to the excess, if any, of (a) the Original Cost of such share, over (b) the aggregate amount of Distributions made by the Corporation that constitute a return of Original Cost of such share.
 
“ Yield ” means with respect to each share of Class L Common, for each calendar quarter, the amount accruing on such share each day during such quarter at a rate of 15% per annum of the sum of (a) such share’s Unreturned Original Cost, plus (b) Unpaid Yield thereon for all prior quarters. In calculating the amount of any Distribution to be made during a calendar quarter, the portion of a Class L Common share’s Yield for such portion of such quarter elapsing before such Distribution is made shall be taken into account.
 
ARTICLE FIVE
 
The Corporation is to have perpetual existence.
 
ARTICLE SIX
 
In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation.
 
ARTICLE SEVEN
 
Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of director or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.
 
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ARTICLE EIGHT
 
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of director of the Corporation existing at the time of such repeal or modification.
 
ARTICLE NINE
 
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
 
ARTICLE TEN
 
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
 
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Exhibit 3.10
 
AMENDED AND RESTATED BY-LAWS
 
OF
 
SHEPLERS HOLDING CORPORATION
A Delaware Corporation
 
(Adopted As Of July 30, 2007)
 
ARTICLE I
 
OFFICES
 
Section 1 .                    Registered Office . The registered office of the corporation in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware, County of New Castle, Delaware, 19801. The name of its registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.
 
Section 2 .                    Other Offices . The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.
 
ARTICLE II
 
MEETINGS OF STOCKHOLDERS
 
Section 1 .                    Place and Time of Meetings . An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the president of the corporation; provided, that if the president does not act, the board of directors shall determine the date, time and place, if any, and/or the means of remote communication, of such meeting.
 
Section 2 .                    Special Meetings . Special meetings of stockholders may be called for any purpose and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than 50 percent of the votes at the meeting, such written request shall state the purpose or purposes of the meeting and shall be delivered to the president. On such written request, the president shall fix a date and time for such meeting within 30 days of the date requested for such meeting in such written request.

 
Section 3 .                    Place of Meetings . The board of directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.
 
Section 4 .                    Notice . Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of 1) such posting and 2) the giving of such separate notice; and (4) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent.
 
Section 5 .                    Stockholders List . The officer having charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
 
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Section 6 .                    Quorum . The holders of a majority of the outstanding shares of capital stock, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.
 
Section 7 .                    Adjourned Meetings . When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. 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 meeting.
 
Section 8 .                    Vote Required . When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
 
Section 9 .                    Voting Rights . Except as otherwise provided by the General Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.
 
Section 10 .             Proxies . Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
 
Section 11 .             Action by Written Consent . Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand
 
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or by certified or registered mail, return receipt requested. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.
 
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
 
Section 12 .             Action by Telegram, Cablegram or Other Electronic Transmission Consent . A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section; provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the board of directors of the corporation.
 
ARTICLE III
 
DIRECTORS
 
Section 1 .                    General Powers . The business and affairs of the corporation shall be managed by or under the direction of the board of directors.
 
Section 2 .                    Number, Election and Term of Office . The number of directors which shall constitute the board shall be two (2). The number of directors shall be established from time to time in accordance with the provisions of that certain Stockholders Agreement, to be dated as of July 30, 2007 (the “Stockholders Agreement”), by and among the corporation and certain of its stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors.
 
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The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
 
Section 3 .                    Removal and Resignation . Any director or the entire board of directors may be removed at any time, with or without cause, in accordance with the provisions of the Stockholders Agreement. Any director may resign at any time upon written notice given in writing or by electronic transmission to the corporation.
 
Section 4 .                    Vacancies . Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled in accordance with the provisions of the Stockholders Agreement. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
 
Section 5 .                    Annual Meetings . The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place, if any, as the annual meeting of stockholders.
 
Section 6 .                    Other Meetings and Notice . Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board. Special meetings of the board of directors may be called by or at the request of the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by telegraph.
 
Section 7 .                    Quorum, Required Vote and Adjournment . A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
 
Section 8 .                    Committees . The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these bylaws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. 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. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
 
Section 9 .                    Committee Rules . Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. In the event that a member and that member’s alternate, if alternates are designated by the board of directors
 
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as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.
 
Section 10 .             Communications Equipment . Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.
 
Section 11 .             Waiver of Notice and Presumption of Assent . Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
 
Section 12 .             Action by Written Consent . Unless otherwise restricted by the certificate of incorporation, 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 or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
 
ARTICLE IV
 
OFFICERS
 
Section 1 .                    Number . The officers of the corporation shall be elected by the board of directors and shall consist of a president, one or more vice-presidents, a chief financial officer, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
 
Section 2 .                    Election and Term of Office . The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office
 
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until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
 
Section 3 .                    Removal . Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
 
Section 4 .                    Vacancies . Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
 
Section 5 .                    Compensation . Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.
 
Section 6 .                    The President . The president shall be the chief executive officer of the corporation; shall preside at all meetings of the stockholders and board of directors at which he or she is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; 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. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.
 
Section 7 .                    Chief Financial Officer . The chief financial officer of the corporation shall, under the direction of the chief executive officer, be responsible for all financial and accounting matters and for the direction of the offices of treasurer and controller. The chief financial officer shall have such other powers and perform such other duties as may be prescribed by the chairman of the board, the chief executive officer or the board of directors or as may be provided in these by-laws.
 
Section 8 .                    Vice-presidents . The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.
 
Section 9 .                    The Secretary and Assistant Secretaries . The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law; shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time,
 
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prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her 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 his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, 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, the president, or secretary may, from time to time, prescribe.
 
Section 10 .             The Treasurer and Assistant Treasurer . The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the 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 the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the president or treasurer may, from time to time, prescribe.
 
Section 11 .             Other Officers, Assistant Officers and Agents . Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.
 
Section 12 .             Absence or Disability of Officers . In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.
 
ARTICLE V
 
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
 
Section 1 .                    Nature of Indemnity . Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal,
 
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administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, is or was a director or officer, of the corporation shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding); provided, however, that, except as provided in Section 2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.
 
Section 2 .                    Procedure for Indemnification of Directors and Officers . Any indemnification of a director or officer of the corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
 
Section 3 .                    Article Not Exclusive . The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.
 
Section 4 .                    Insurance . The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or
 
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agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.
 
Section 5 .                    Expenses . Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.
 
Section 6 .                    Employees and Agents . Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors.
 
Section 7 .                    Contract Rights . The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.
 
Section 8 .                    Merger or Consolidation . For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
 
ARTICLE VI
 
CERTIFICATES OF STOCK
 
Section 1 .                    Form . Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president,
 
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secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.
 
Section 2 .                    Lost Certificates . The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously 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 certificates, 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 certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.
 
Section 3 .                    Fixing a Record Date for Stockholder Meetings . In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
 
Section 4 .                    Fixing a Record Date for Action by Written Consent . In order that the corporation may determine the stockholders entitled to consent to corporate action in writing
 
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without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.
 
Section 5 .                    Fixing a Record Date for Other Purposes . In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
 
Section 6 .                    Registered Stockholders . Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner.
 
Section 7 .                    Subscriptions for Stock . Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.
 
ARTICLE VII
 
GENERAL PROVISIONS
 
Section 1 .                    Dividends . Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at
 
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any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends 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 dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.
 
Section 2 .                    Checks, Drafts or Orders . All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
 
Section 3 .                    Contracts . The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
 
Section 4 .                    Loans . The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
 
Section 5 .                    Fiscal Year . The fiscal year of the corporation shall be fixed by resolution of the board of directors.
 
Section 6 .                    Corporate Seal . The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
 
Section 7 .                    Voting Securities Owned By Corporation . Voting securities in any other corporation held by the corporation shall be voted by the president, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
 
Section 8 .                    Inspection of Books and Records . Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or
 
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extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.
 
Section 9 .                    Section Headings . Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
 
Section 10 .             Inconsistent Provisions . In the event that any provision of these by-laws is or becomes inconsistent with any provision of the certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
 
ARTICLE VIII
 
AMENDMENTS
 
These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.
 
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Exhibit 3.11
 
Exhibit A
 
AMENDED AND RESTATED ARTICLES OF INCORPORATION
 
OF
 
SHEPLERS, INC.
 
The undersigned, John T. Mosley, being the Executive Vice President of Sheplers, Inc., a corporation organized and existing under the laws of the State of Kansas (the “Corporation”), does hereby certify as follows:
 
1.                                       The present name of the Corporation is Sheplers, Inc. The date of the filing of the original Articles of Incorporation of the Corporation with the Secretary of State of the State of Kansas was April 9, 1976, under the name “Grace Acquisition Corporation” (as amended, the “Articles of Incorporation”).
 
2.                                       This Amended and Restated Articles of Incorporation of the Corporation was duly adopted by the board of directors and by the sole stockholder of the Corporation in accordance with Section 17-6605 of the General Corporation Code of the State of Kansas.
 
3.                                       The text of the Articles of Incorporation of the Corporation, as heretofore amended and supplemented, is hereby restated and further amended to read in its entirety as follows:
 
ARTICLE ONE
 
The name of the corporation (the “Corporation”) is Sheplers, Inc.
 
ARTICLE TWO
 
The address of the Corporation’s registered office in the State of Kansas is 6501 W. Kellogg Drive, Wichita, Kansas, 67209. The name of its registered agent at such address is John T. Mosley.

 
ARTICLE THREE
 
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Code of the State of Kansas.
 
ARTICLE FOUR
 
The total number of shares of stock which the Corporation has authority to issue is one thousand (1,000) shares of Common Stock, with a par value of $1.00 per share.
 
ARTICLE FIVE
 
The Corporation is to have perpetual existence.
 
ARTICLE SIX
 
In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation.
 
ARTICLE SEVEN
 
Meetings of stockholders may be held within or without the State of Kansas, as the by-laws of the Corporation may provide. The books of the Corporation may be kept outside the State of Kansas at such place or places as may be designated from time to time by the board of directors or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.
 
ARTICLE EIGHT
 
The Corporation will indemnify its directors, officers, employees or agents and all other persons as provided in and to the full extent allowed by Section 17-6305 of the Kansas General Corporation Code as presently in effect or as it may hereafter be amended.
 
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IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Articles of Incorporation as of the 30 day of July, 2007.

 	SHEPLERS, INC.,	
 	a Kansas corporation	

 	By:	/s/ John T. Mosley	
 	 	John T. Mosley	
 	 	Executive Vice President	
 
(Sheplers, Inc.,
A&R Articles of Incorporation)
 
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Exhibit 3.12
 
AMENDED AND RESTATED BYLAWS
 
OF
 
SHEPLERS, INC.,
a Kansas corporation
 
(Adopted as of July 30, 2007)
 
ARTICLE I
OFFICES
 
Section 1.               Registered Office . The registered office of the corporation in the State of Kansas shall be located at Kansas is in the City of Topeka, County of Shawnee, State of Kansas.
 
Section 2.               Other Offices . The corporation may also have offices at such other places, both within and without the State of Kansas, as the board of directors may from time to time determine or the business of the corporation may require.
 
ARTICLE II
MEETINGS OF STOCKHOLDERS
 
Section 1.               Place and Time of Meetings . An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place of the annual meeting shall be determined by the president of the corporation; provided, that if the president does not act, the board of directors shall determine the date, time and place of such meeting.
 
Section 2.               Special Meetings . Special meetings of stockholders may be called for any purpose and may be held at such time and place, within or without the State of Kansas, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, such written request shall state the purpose or purposes of the meeting and shall be delivered to the president.
 
Section 3.               Place of Meetings . The board of directors may designate any place, either within or without the State of Kansas, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.
 
Section 4.      Notice . Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to

 
vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
 
Section 5.               Stockholders List . The officer having charge of the stock ledger of the corporation shall make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
 
Section 6.               Quorum . The holders of a majority of the outstanding shares of capital stock, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the articles of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.
 
Section 7.               Adjourned Meetings . When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
 
Section 8.               Vote Required . When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the articles of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
 
Section 9.               Voting Rights . Except as otherwise provided by the General Corporation Code of the State of Kansas or by the articles of incorporation of the corporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one (1) vote in person or by proxy for each share of common stock held by such stockholder.
 
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Section 10.             Proxies . Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.
 
Section 11.             Action by Written Consent . Unless otherwise provided in the articles of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Kansas, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested provided, however, that no consent or consents delivered by certified or registered mail shall be deemed delivered until such consent or consents are actually received at the registered office. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.
 
ARTICLE III
DIRECTORS
 
Section 1.               General Powers . The business and affairs of the corporation shall be managed by or under the direction of the board of directors.
 
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Section 2.               Number, Election and Term of Office . The number of directors which shall constitute the board shall be one (1). Thereafter, the number of directors shall be established from time to time by resolution of the board or the stockholders of the corporation. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
 
Section 3.               Removal and Resignation . Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation’s articles of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon written notice to the corporation.
 
Section 4.               Vacancies . Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
 
Section 5.               Annual Meetings . The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of stockholders.
 
Section 6.               Other Meetings and Notice . Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board. Special meetings of the board of directors may be called by or at the request of the president on at least twenty-four (24) hours notice to each director, either personally, by telephone, by mail, or by telegraph.
 
Section 7.               Quorum, Required Vote and Adjournment . A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
 
Section 8.               Committees . The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of
 
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directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. 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. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
 
Section 9.               Committee Rules . Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.
 
Section 10.             Communications Equipment . Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.
 
Section 11.             Waiver of Notice and Presumption of Assent . Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
 
Section 12.             Action by Written Consent . Unless otherwise restricted by the articles of incorporation, 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, and the writing or writings are filed with the minutes of proceedings of the board or committee.
 
ARTICLE IV
OFFICERS
 
Section 1.               Number . The officers of the corporation shall be elected by the board of directors and shall consist of a president, one or more vice-presidents, secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board
 
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of directors may choose not to fill any office for any period as it may deem advisable, except that the offices of president and secretary shall be filled as expeditiously as possible.
 
Section 2.               Election and Term of Office . The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. The president shall be elected annually by the board of directors at the first meeting of the board of directors held after each annual meeting of stockholders or as soon thereafter as conveniently may be. The president shall appoint other officers to serve for such terms as he or she deems desirable. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
 
Section 3.               Removal . Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
 
Section 4.               Vacancies . Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
 
Section 5.               Compensation . Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.
 
Section 6.               The President . The president shall be the chief executive officer of the corporation; shall preside at all meetings of the stockholders and board of directors at which he is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; 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. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.
 
Section 7.               Vice-presidents . The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors or by the president, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.
 
Section 8.               The Secretary and Assistant Secretaries . The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the
 
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stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law; shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his 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 his signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, 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, the president, or secretary may, from time to time, prescribe.
 
Section 9.               The Treasurer and Assistant Treasurer . The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six (6) years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the 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 the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the president or treasurer may, from time to time, prescribe.
 
Section 10.             Other Officers, Assistant Officers and Agents . Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.
 
Section 11.             Absence or Disability of Officers . In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.
 
7 

ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
 
Section 1.               Nature of Indemnity . Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he, or a person of whom he is the legal representative, is or was a director or officer, of the corporation or is or was serving at the request of the corporation as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so unless prohibited from doing so by the General Corporation Code of the State of Kansas, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall inure to the benefit of his heirs, executors and administrators; provided, however, that, except as provided in Section 2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.
 
Section 2.               Procedure for Indemnification of Directors and Officers . Any indemnification of a director or officer of the corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within thirty (30) days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty (60) days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Code of the State of Kansas for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has
 
8 

 
met the applicable standard of conduct set forth in the General Corporation Code of the State of Kansas, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
 
Section 3.               Article Not Exclusive . The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the articles of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.
 
Section 4.               Insurance . The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.
 
Section 5.               Expenses . Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.
 
Section 6.               Employees and Agents . Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors.
 
Section 7.               Contract Rights . The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Code of the State of Kansas or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.
 
Section 8.               Merger or Consolidation . For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of
 
9 

 
such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
 
ARTICLE VI
CERTIFICATES OF STOCK
 
Section 1.               Form . Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares of a specific class or series owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.
 
Section 2.               Lost Certificates . The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously 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 certificates, 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 certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.
 
10 

 
Section 3.               Fixing a Record Date for Stockholder Meetings . In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
 
Section 4.               Fixing a Record Date for Action by Written Consent . In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Kansas, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.
 
Section 5.               Fixing a Record Date for Other Purposes . In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
 
Section 6.               Registered Stockholders . Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other
 
11 

 
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.
 
Section 7.               Subscriptions for Stock . Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.
 
ARTICLE VII
GENERAL PROVISIONS
 
Section 1.               Dividends . Dividends 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 meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends 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 dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.
 
Section 2.               Checks, Drafts or Orders . All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
 
Section 3.               Contracts . The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
 
Section 4.               Loans . The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
 
Section 5.               Fiscal Year . The fiscal year of the corporation shall be fixed by resolution of the board of directors.
 
12 

 
Section 6.               Corporate Seal . The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Kansas”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
 
Section 7.               Voting Securities Owned By Corporation . Voting securities in any other corporation held by the corporation shall be voted by the president, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
 
Section 8.               Inspection of Books and Records . Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Kansas or at its principal place of business.
 
Section 9.               Section Headings . Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
 
Section 10.             Inconsistent Provisions . In the event that any provision of these by-laws is or becomes inconsistent with any provision of the articles of incorporation, the General Corporation Code of the State of Kansas or any other applicable law, the provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
 
ARTICLE VIII
AMENDMENTS
 
These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.
 
13 

Exhibit 4.2

BOOT BARN HOLDINGS, INC.
 
and
 
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
 
INDENTURE
 
Dated as of             , 20

 
Boot Barn Holdings, Inc.
 Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:

Trust Indenture
Act Section	 	Indenture Section	
§ 310	(a)(1)	 	6.09	
 	(a)(2)	 	6.09	
 	(a)(3)	 	Not Applicable	
 	(a)(4)	 	Not Applicable	
 	(a)(5)	 	6.09	
 	(b)	 	6.07	
 	(c)	 	Not Applicable	
§ 311	(a)	 	6.10	
 	(b)	 	6.10	
 	(c)	 	Not Applicable	
§ 312	(a)	 	7.01	
 	(b)	 	7.02	
 	(c)	 	7.02	
§ 313	(a)	 	7.03	
 	(b)	 	7.03	
 	(c)	 	7.03	
 	(d)	 	7.03	
§ 314	(a)	 	7.04	
 	(a)(4)	 	1.01	
 	(b)	 	Not Applicable	
 	(c)(1)	 	1.02	
 	(c)(2)	 	1.02	
 	(c)(3)	 	Not Applicable	
 	(d)	 	Not Applicable	
 	(e)	 	1.02	
§ 315	(a)	 	6.01	
 	(b)	 	6.05	
 	(c)	 	6.01	
 	(d)	 	6.01	
 	(e)	 	5.14	
§ 316	(a)	 	1.01	
 	(a)(1)(A)	 	5.02	
 	 	 	5.12	
 	 	 	5.13	
 	(a)(1)(B)	 	5.13	
 	(a)(2)	 	Not Applicable	
 	(b)	 	5.08	
 	(c)	 	1.05	
§ 317	(a)(1)	 	5.03	
 	(a)(2)	 	5.04	
 	(b)	 	10.03	
§ 318	(a)	 	1.08	

 
NOTE:                 This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 
TABLE OF CONTENTS

 	 	Page	
ARTICLE I	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	1	
 	 	
Section 1.01	Definitions	1	
Section 1.02	Compliance Certificates and Opinions	8	
Section 1.03	Form of Documents Delivered to Trustee	8	
Section 1.04	No Adverse Interpretation of Other Agreements	9	
Section 1.05	Acts of Holders; Record Dates	9	
Section 1.06	Notices, Etc., to Trustee, Company	11	
Section 1.07	Notice to Holders; Waiver	12	
Section 1.08	Conflict with Trust Indenture Act	12	
Section 1.09	Effect of Headings and Table of Contents	13	
Section 1.10	Successors and Assigns	13	
Section 1.11	Separability Clause	13	
Section 1.12	Benefits of Indenture	13	
Section 1.13	Governing Law	13	
Section 1.14	Legal Holidays	13	
Section 1.15	Waiver of Jury Trial	13	
Section 1.16	Force Majeure	13	
Section 1.17	Submission to Jurisdiction	14	
Section 1.18	Foreign Account Tax Compliance Act (FATCA)	14	
 	 	
ARTICLE II	SECURITY FORMS	14	
 	 	
Section 2.01	Forms Generally	14	
Section 2.02	Form of Face of Security	14	
Section 2.03	Form of Reverse of Security	16	
Section 2.04	Form of Legend for Global Securities	19	
Section 2.05	Form of Trustee’s Certificate of Authentication	20	
Section 2.06	Form of Guarantee	20	
 	 	
ARTICLE III	THE SECURITIES	22	
 	 	
Section 3.01	Amount Unlimited; Issuable in Series	22	
Section 3.02	Denominations	25	
Section 3.03	Execution, Authentication, Delivery and Dating	25	
Section 3.04	Temporary Securities	27	
Section 3.05	Registration, Registration of Transfer and Exchange	27	
Section 3.06	Mutilated, Destroyed, Lost and Stolen Securities	29	
Section 3.07	Payment of Interest; Interest Rights Preserved	30	
Section 3.08	Persons Deemed Owners	31	
Section 3.09	Cancellation	31	
Section 3.10	Computation of Interest	32	
Section 3.11	CUSIP Numbers	32	

i 

 
TABLE OF CONTENTS
(continued)

 	 	Page	
ARTICLE IV	SATISFACTION AND DISCHARGE	32	
 	 	
Section 4.01	Satisfaction and Discharge of Indenture	32	
Section 4.02	Application of Trust Money	33	
 	 	
ARTICLE V	REMEDIES	33	
 	 	
Section 5.01	Events of Default	33	
Section 5.02	Acceleration of Maturity; Rescission and Annulment	35	
Section 5.03	Collection of Indebtedness and Suits for Enforcement by Trustee	36	
Section 5.04	Trustee May File Proofs of Claim	37	
Section 5.05	Trustee May Enforce Claims Without Possession of Securities	37	
Section 5.06	Application of Money Collected	37	
Section 5.07	Limitation on Suits	38	
Section 5.08	Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert	38	
Section 5.09	Restoration of Rights and Remedies	38	
Section 5.10	Rights and Remedies Cumulative	38	
Section 5.11	Delay or Omission Not Waiver	39	
Section 5.12	Control by Holders	39	
Section 5.13	Waiver of Past Defaults	39	
Section 5.14	Undertaking for Costs	40	
Section 5.15	Waiver of Usury, Stay or Extension Laws	40	
 	 	
ARTICLE VI	THE TRUSTEE	40	
 	 	
Section 6.01	Duties of Trustee	40	
Section 6.02	Rights of Trustee	41	
Section 6.03	Individual Rights of Trustee	43	
Section 6.04	Trustee’s Disclaimer	43	
Section 6.05	Notice of Default	43	
Section 6.06	Compensation and Indemnity	43	
Section 6.07	Replacement of Trustee	44	
Section 6.08	Successor Trustee by Merger, Etc.	45	
Section 6.09	Eligibility; Disqualification	46	
Section 6.10	Preferential Collection of Claims against Company	46	
Section 6.11	Appointment of Authenticating Agent	46	
 	 	
ARTICLE VII	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY	48	
 	 	
Section 7.01	Company to Furnish Trustee Names and Addresses of Holders	48	
Section 7.02	Preservation of Information; Communications to Holders	48	
Section 7.03	Reports by Trustee	48	
Section 7.04	Reports by Company	49	

ii 

 
TABLE OF CONTENTS
(continued)

 	Page	
ARTICLE VIII	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	49	
 	 	
Section 8.01	Company May Merge, Etc., Only on Certain Terms	49	
Section 8.02	Amalgamations, Mergers, Consolidations and Certain Sales of Assets by Guarantors	49	
Section 8.03	Successor Person Substituted	50	
 	 	
ARTICLE IX	SUPPLEMENTAL INDENTURES	51	
 	 	
Section 9.01	Supplemental Indentures Without Consent of Holders	51	
Section 9.02	Supplemental Indentures with Consent of Holders	52	
Section 9.03	Execution of Supplemental Indentures	53	
Section 9.04	Effect of Supplemental Indentures	53	
Section 9.05	Conformity with Trust Indenture Act	54	
Section 9.06	Reference in Securities to Supplemental Indentures	54	
 	 	
ARTICLE X	COVENANTS	54	
 	 	
Section 10.01	Payment of Securities	54	
Section 10.02	Maintenance of Office or Agency	54	
Section 10.03	Money for Securities Payments to Be Held in Trust	55	
Section 10.04	Corporate Existence	56	
Section 10.05	Compliance Certificate	56	
Section 10.06	Waiver of Certain Covenants	56	
 	 	
ARTICLE XI	REDEMPTION OF SECURITIES	56	
 	 	
Section 11.01	Applicability of Article	56	
Section 11.02	Election to Redeem; Notice to Trustee	56	
Section 11.03	Selection by Trustee of Securities to Be Redeemed	57	
Section 11.04	Notice of Redemption	57	
Section 11.05	Deposit of Redemption Price	58	
Section 11.06	Securities Payable on Redemption Date	59	
Section 11.07	Securities Redeemed in Part	59	
 	 	
ARTICLE XII	SINKING FUNDS	59	
 	 	
Section 12.01	Applicability of Article	59	
Section 12.02	Satisfaction of Sinking Fund Payments with Securities	60	
Section 12.03	Redemption of Securities for Sinking Fund	60	
 	 	
ARTICLE XIII	DEFEASANCE AND COVENANT DEFEASANCE	60	
 	 	
Section 13.01	Company’s Option to Effect Defeasance or Covenant Defeasance	60	
Section 13.02	Defeasance and Discharge	60	
Section 13.03	Covenant Defeasance	61	
Section 13.04	Conditions to Defeasance or Covenant Defeasance	61	

iii 

 
TABLE OF CONTENTS
(continued)

 	 	Page	
Section 13.05	Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions	63	
Section 13.06	Reinstatement	64	
Section 13.07	Qualifying Trustee	64	
 	 	
ARTICLE XIV	GUARANTORS	64	
 	 	
Section 14.01	Guarantee	64	
Section 14.02	Execution and Delivery of Guarantees	66	
Section 14.03	Guarantors May Consolidate, Etc., on Certain Terms	66	
Section 14.04	Release of Guarantors	66	
Section 14.05	Additional Guarantors	67	

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INDENTURE, dated as of              , 20  , between Boot Barn Holdings, Inc., a Delaware corporation (herein called the “Company”), having its principal office at 15345 Barranca Parkway, Irvine, California 92618, Wells Fargo Bank, National Association, a National Banking Association, as trustee (herein called the “Trustee”) and each of the guarantors appearing on the signature page hereto (together, the “Guarantors”).
 
RECITALS OF THE COMPANY
 
Each of the Company and the Guarantors has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness of the Company, guaranteed by the Guarantors (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
 
All things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been done.
 
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
 
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
 
ARTICLE I
 
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
 
Section 1.01                              Definitions .  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
 
(1)                                  the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
 
(2)                                  all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
 
(3)                                  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;
 
(4)                                  the words “Article” and “Section” refer to an Article and Section, respectively, of this Indenture; and

 
(5)                                  the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
 
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.05.
 
“Add On Securities” has the meaning specified in Section 3.01.
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
 
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.11 to act on behalf of the Trustee to authenticate Securities of one or more series.
 
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors.
 
“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board.
 
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
 
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
 
“Capital Lease Obligation” means, at any time any determination thereof is made, the amount of the liability in respect of a capital lease that would at such time be so required to be capitalized on the balance sheet in accordance with GAAP.
 
“Commission” means the U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
 
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
 
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by any of the Executive Chairman, the Chief Executive Officer, the President, an Executive Vice President, a Senior Vice President, a Vice President, the Chief
 
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Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, and delivered to the Trustee.
 
“Corporate Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office as of the date hereof is located at [ · ], or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee.
 
“corporation” means a corporation, association, company, joint-stock company or business trust.
 
“Covenant Defeasance” has the meaning specified in Section 13.03.
 
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
 
“Defaulted Interest” has the meaning specified in Section 3.07.
 
“Defeasance” has the meaning specified in Section 13.02.
 
“Defeasible Series” has the meaning specified in Section 13.01.
 
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
 
“Event of Default” has the meaning specified in Section 5.01.
 
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time, and any statute successor thereto.
 
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States or successor generally accepted accounting principles (including International Financial Reporting Standards) upon a change from GAAP to such successor principles, to the extent such change is required or permitted by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accounts or, if applicable, the Commission.
 
“Global Security” means a Security that evidences all or part of the Securities of any series and is authenticated and delivered to, and registered in the name of, the Depositary for such Securities or a nominee thereof.
 
“Guarantee” or “guarantee” by any Person means any obligation, contingent or otherwise, of such Person guaranteeing any Indebtedness of any other Person (the “primary
 
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obligor”) in any manner, whether directly or indirectly, and including, without limitation, any obligation of such Person, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness, (ii) to purchase property, securities or services for the purpose of assuring the holder of such Indebtedness of the payment of such Indebtedness, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness (and “Guaranteed”, “Guaranteeing” and “Guarantor” shall have meanings correlative to the foregoing); provided , however , that the Guarantee by any Person shall not include endorsements by such Person for collection or deposit, in either case, in the ordinary course of business.
 
“Guarantor” means each of the Persons named as a “Guarantor” on the signature page of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.
 
“Hedging Obligations” means, with respect to any Person, the Obligations of such Person under interest rate swap agreements, interest rate cap agreements, and interest rate collar agreements, and other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
 
“Holder” means a Person in whose name a Security is registered in the Security Register.
 
“Indebtedness” means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or representing Capital Lease Obligations or the balance deferred and unpaid of the purchase price of any property or representing any Hedging Obligations, except any such balance that constitutes an accrued expense or trade payable, and all deferrals, renewals, extensions and refundings of obligations of any of the foregoing, if and to the extent any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, and also includes, to the extent not otherwise included, the Guarantee of any indebtedness of such Person or any other Person.
 
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.  The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
 
“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only at or after Maturity, means interest payable at or after Maturity.
 
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“Interest Payment Date” shall be defined by the terms of the Security established in accordance with Section 3.01.
 
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
 
“Notice of Default” means a written notice of the kind specified in Section 5.01(4) or 5.01(5).
 
“Obligations” means any principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
 
“Officer’s Certificate” means a certificate signed by any of the Executive Chairman, the Chief Executive Officer, the President, an Executive Vice President, a Senior Vice President, a Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
 
“Opinion of Counsel” means a written opinion of counsel acceptable to the Trustee, which counsel may be an employee of the Company.
 
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
 
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except :
 
(1)                                  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation (including, if applicable, upon conversion);
 
(2)                                  Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
 
(3)                                  Securities as to which Defeasance has been effected pursuant to Section 13.02; and
 
(4)                                  Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
 
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provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof on such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by the terms of such Security, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units shall be the U.S. dollar equivalent, determined in the manner provided as contemplated by Section 3.01 on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security of the amount determined as provided in Clause (A) above) of such Security, and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
 
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
 
“Person” means any individual, corporation, partnership, joint venture, limited liability company, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
 
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable, as specified pursuant to Section 3.01.
 
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
 
“Prospectus” means a Prospectus of the Company relating to the offering from time to time of the Securities.
 
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
 
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“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to Article XI of this Indenture.
 
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
 
“Responsible Officer”, when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee, including any vice president, any assistant vice president, any trust officer or assistant trust officer, any associate or senior associate or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
 
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
 
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
 
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission (or any successor provision).
 
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
 
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
 
“Subsidiary” means, with respect to any Person, (1) a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or a combination thereof, and (2) any partnership, joint venture or limited liability company of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interest or general and limited partnership interest, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (y) such Person or any other Subsidiary of such Person is a controlling general partner or otherwise controls such entity.  For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
 
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“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided , however , that in the event the U.S. Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the U.S. Trust Indenture Act of 1939 as so amended.
 
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
 
“U.S. Government Obligations” has the meaning specified in Section 13.04.
 
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
 
Section 1.02                         Compliance Certificates and Opinions .  Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with.  Each such Officer’s Certificate and Opinion of Counsel shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
 
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.05(a)) shall include
 
(1)                                  a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
 
(2)                                  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(3)                                  a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
 
(4)                                  a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
 
Section 1.03                              Form of Documents Delivered to Trustee .  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not
 
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necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
 
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or any Subsidiary of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
 
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
 
Section 1.04                              No Adverse Interpretation of Other Agreements .  This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of the Company.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
 
Section 1.05                              Acts of Holders; Record Dates .  Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
 
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof.  Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
 
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The ownership of Securities shall be proved by the Security Register.
 
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
 
The Company may set any day as the record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series.  With regard to any record date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to give or take the relevant action, whether or not such Holders remain Holders after such record date.  With regard to any action that may be given or taken hereunder only by Holders of a requisite principal amount of Outstanding Securities of any series (or their duly appointed agents) and for which a record date is set pursuant to this paragraph, the Company may, at its option, set an expiration date after which no such action purported to be given or taken by any Holder shall be effective hereunder unless given or taken on or prior to such expiration date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date (or their duly appointed agents).  On or prior to any expiration date set pursuant to this paragraph, the Company may, on one or more occasions at its option, extend such date to any later date.  Nothing in this paragraph shall prevent any Holder (or any duly appointed agent thereof) from giving or taking, after any such expiration date, any action identical to, or, at any time, contrary to or different from, the action or purported action to which such expiration date relates, in which event the Company may set a new record date in respect thereof pursuant to this paragraph.  Nothing in this paragraph shall be construed to render ineffective any action taken at any time by the Holders (or their duly appointed agents) of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is so taken.  Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any notice, declaration or direction referred to in the next paragraph.
 
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, if an Event of Default with respect to Securities of such series has occurred and is continuing and the Trustee shall not have given such a declaration to the Company, (iii) any request to institute proceedings referred to in Section 5.07 (2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series.  Promptly after any record date is set pursuant to this paragraph, the Trustee shall notify the Company and the Holders of Outstanding Securities of such series of any such record date so fixed and the proposed action.  The Holders of Outstanding Securities of such series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that, unless such notice, declaration, request or direction shall have become effective by virtue of Holders of the requisite principal amount of
 
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Outstanding Securities of such series on such record date (or their duly appointed agents) having joined therein on or prior to the 90th day after such record date, such notice, declaration, request or direction shall automatically and without any action by any Person be cancelled and of no further effect.  Nothing in this paragraph shall be construed to prevent a Holder (or a duly appointed agent thereof) from giving, before or after the expiration of such 90-day period, a notice, declaration, request or direction contrary to or different from, or, after the expiration of such period, identical to, the notice, declaration, request or direction to which such record date relates, in which event the Trustee may set a new record date in respect thereof pursuant to this paragraph.  Nothing in this paragraph shall be construed to render ineffective any notice, declaration, request or direction of the type referred to in this paragraph given at any time to the Trustee and the Company by Holders (or their duly appointed agents) of the requisite principal amount of Outstanding Securities of the relevant series on the date such notice, declaration, request or direction is so given.
 
Without limiting the foregoing, a Holder entitled hereunder to give or take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount.
 
Section 1.06                              Notices, Etc., to Trustee, Company .  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
 
(1)                                  the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be via facsimile) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or
 
(2)                                  the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
 
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods; provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons.  If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions or directions notwithstanding such instructions or directions conflict or are inconsistent with a subsequent written instruction or direction.  The party providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic
 
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methods, as aforesaid, agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
 
Section 1.07                              Notice to Holders; Waiver .  Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and delivered electronically or mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.  In any case where notice to Holders is given by mail or email, neither the failure to mail or email such notice, nor any defect in any notice so mailed or emailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
 
Section 1.08                              Conflict with Trust Indenture Act .  If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.  Wherever this Indenture refers to a provision of the Trust Indenture Act, such provision is incorporated by reference in and made a part of this Indenture.
 
The following Trust Indenture Act terms used in this Indenture have the following meanings:
 
“commission” means the Commission;
 
“indenture securities” means the Securities;
 
“indenture security holder” means a Holder;
 
“indenture to be qualified” means this Indenture;
 
“indenture trustee” or “institutional trustee” means the Trustee; and
 
“obligor on the indenture securities” means the Company and any other obligor on the Securities.
 
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by the Trust Indenture Act’s reference to another statute or defined by any Commission Rule and not otherwise defined herein have the meanings so assigned to them thereby.
 
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Section 1.09                              Effect of Headings and Table of Contents .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
 
Section 1.10                              Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
 
Section 1.11                              Separability Clause .  In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
Section 1.12                              Benefits of Indenture .  Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
 
Section 1.13                              Governing Law .  This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York, but without regard to principles of conflicts of laws.
 
Section 1.14                              Legal Holidays .  In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or the last date on which a Holder has the right to convert his Securities shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of the Securities of any series which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or conversion of the Securities need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such last day for conversion, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, on the payment so deferred.
 
Section 1.15                              Waiver of Jury Trial .  EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
 
Section 1.16                              Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
 
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Section 1.17                              Submission to Jurisdiction .  Each of the Company and the Guarantors hereby irrevocably submit to the jurisdiction of any New York state court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Securities, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
 
Section 1.18                              Foreign Account Tax Compliance Act (FATCA) .  In order to comply with Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the date of this Agreement (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code (“FATCA”), the Company agrees (i) to provide to the Trustee or any Paying Agent sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions), to the extent reasonably available and at the Trustee’s or Paying Agent’s reasonable request, so the Trustee or Paying Agent can determine whether it has tax related obligations under FATCA, (ii) that the Trustee and Paying Agent shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with FATCA for which the Trustee and Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and Paying Agent for any losses it may suffer due to the actions it takes to comply with FATCA.  The terms of this section shall survive the termination of this Indenture.
 
ARTICLE II
 
SECURITY FORMS
 
Section 2.01                              Forms Generally .  The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities.  If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
 
The definitive Securities shall be printed or produced in any other manner as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
 
Section 2.02                              Form of Face of Security .
 
[Insert any legend required by the U.S. Internal Revenue Code and the regulations thereunder.]
 
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BOOT BARN HOLDINGS, INC.

CUSIP No.	$	
 
Boot Barn Holdings, Inc., a Delaware corporation (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to             , or registered assigns, the principal sum of             Dollars on             [ if the Security is to bear interest prior to Maturity, insert —, and to pay interest thereon from            or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on          and          in each year, commencing            at the rate of   % per annum, until the principal hereof is paid or made available for payment [ if applicable, insert —, and at the rate of   % per annum on any overdue principal and premium and (to the extent that payment of such interest shall be legally enforceable) on any overdue installment of interest].  The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the         or          (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
 
[ If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal of this Security shall bear interest at the rate of   % per annum (to the extent that payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for.  Interest on any overdue principal shall be payable on demand.  Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of   % per annum, which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
 
Payment of the principal of (and premium, if any) and [ if applicable, insert — any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in [      ], in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [ if applicable, insert —; provided , however , that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
 
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Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
 
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated:	 	
 	 	
 	BOOT BARN HOLDINGS, INC.	
 	 	
 	By:	 	
 	 	Name:	
 	 	Title:	
 
Section 2.03                              Form of Reverse of Security .
 
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of              , 20   (herein called the “Indenture”), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.  This Security is one of the series designated on the face hereof [ if applicable, insert —, [initially] limited in aggregate principal amount to $     ].
 
[ If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice delivered, [ if applicable, insert — (1) on            in any year commencing with the year 20 and ending with the year 20 through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [ if applicable, insert on or after            , 20  ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [ if applicable, insert — on or before           ,   %, and if redeemed] during the 12-month period beginning of the years indicated,

Year	 	Redemption
Price	

 	 	 	
 
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [ if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such
 
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Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
 
[ If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice delivered, (1) on           in any year commencing with the year           and ending with the year        through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [ if applicable, insert — on or after           ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning          of the years indicated,

Year	 	Redemption Price
for Redemption Through
Operation of the Sinking Fund	 	Redemption Price
for Redemption
Otherwise Than Through
Operation of the Sinking Fund	

 	 	 	 	 	
 
and thereafter at a Redemption Price equal to   % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
 
[ If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to redeem any Securities of this series as contemplated by [ if applicable, insert — Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than   % per annum.]
 
[ If applicable, insert — The sinking fund for this series provides for the redemption on in each year beginning with the year and ending with the year         of [ if applicable, insert — not less than $        (“mandatory sinking fund”) and not more than] $        aggregate principal amount of Securities of this series.  Securities of this series acquired or redeemed by the Company otherwise than through [ if applicable, insert — mandatory] sinking fund payments [ if applicable, insert — and Securities surrendered for conversion] may be credited against subsequent [ if applicable, insert — mandatory] sinking fund payments otherwise required to be made.]
 
[ If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
 
[ If the Security is not subject to redemption of any kind, insert — The Securities of this series are not subject to redemption prior to Stated Maturity.]
 
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[ If applicable, insert — The Indenture contains provisions for defeasance at any time of [(l) the entire indebtedness of this Security or (2)] certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.]
 
[ If the Security is not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
 
[ If the Security is an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.  Such amount shall be equal to [ insert formula for determining the amount ].  Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable) all of the Company’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
 
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected.  The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
 
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity.  The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed or provided for herein
 
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[ Insert, if applicable — or for enforcement of the right to convert this Security as provided under the Indenture].
 
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed [ Insert if applicable — or to convert this Security as provided in the Indenture].
 
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
 
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
 
No service charge shall be made for any such registration of transfer or exchange, but the Company or the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
 
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
 
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
 
Section 2.04                              Form of Legend for Global Securities .  Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
 
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
 
19 

 
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.  EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
 
Section 2.05                              Form of Trustee’s Certificate of Authentication .  The Trustee’s certificates of authentication shall be in substantially the following form:
 
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 	Wells Fargo Bank, National Association,	
 	as Trustee	

 	By:	 	
 	 	Authorized Signatory	
 	 	 	
 	Dated:	 	
 
Section 2.06                              Form of Guarantee .
 
GUARANTEE
 
For value received, each of the Guarantors listed below hereby jointly and severally unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed, and to the Trustee on behalf of such Holder, the due and punctual payment of the principal of (and premium, if any) and interest on such Security when and as the same shall become due and payable, whether at the Stated Maturity, by acceleration, call for redemption, purchase or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of the Company punctually to make any such payment, each of the Guarantors hereby jointly and severally agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call for redemption, purchase or otherwise, and as if such payment were made by the Company.
 
Each of the Guarantors hereby jointly and severally agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of such Security or the Indenture, the absence of any action to enforce the same or any release or amendment or waiver of any term of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee of all or of any of the Securities, the election by the Trustee or any of the Holders in any proceeding under Chapter 11 of the Bankruptcy Code of the application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security interest by the Company, as debtor-in-possession, under Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of the Trustee or any of the Holders for payment of any of the Securities, any waiver or consent by the Holder of such Security or by the Trustee or either of them with respect to any provisions thereof or of the Indenture, the obtaining of any judgment against the Company or any action to enforce the same
 
20 

or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each of the Guarantors hereby waives the benefits of diligence, presentment, demand of payment, any requirement that the Trustee or any of the Holders exhaust any right or take any action against the Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in such Security and in this Guarantee. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Security, whether at the Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in the Indenture, directly against each of the Guarantors to enforce this Guarantee without first proceeding against the Company. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Securities, to collect interest on the Securities, or to enforce or exercise any other right or remedy with respect to the Securities, such Guarantor agrees to pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
 
No reference herein to the Indenture and no provision of this Guarantee or of the Indenture shall alter or impair the Guarantee of any Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal (and premium, if any) and interest on the Security upon which this Guarantee is endorsed.
 
Each Guarantor shall be subrogated to all rights of the Holder of this Security against the Company in respect of any amounts paid by such Guarantor on account of this Security pursuant to the provisions of its Guarantee or the Indenture; provided , however , that such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any) and interest on this Security and all other Securities issued under the Indenture shall have been paid in full.
 
This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
 
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The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
 
The Guarantors or any particular Guarantor shall be released from this Guarantee upon the terms and subject to certain conditions provided in the Indenture.
 
By delivery of a Supplemental Indenture to the Trustee in accordance with the terms of the Indenture, each Person that becomes a Guarantor after the date of the Indenture will be deemed to have executed and delivered this Guarantee for the benefit of the Holder of this Security with the same effect as if such Guarantor was named below.
 
All terms used in this Guarantee which are defined in the Indenture referred to in the Security upon which this Guarantee is endorsed shall have the meanings assigned to them in such Indenture.
 
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by manual signature.
 
Reference is made to Article XIII of the Indenture for further provisions with respect to this Guarantee.
 
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
 
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be duly executed.

 	[Insert Guarantors, as applicable]	
 	By:	 	
 	 	Authorized Signatory	

 	Dated:	 	
 
ARTICLE III
 
THE SECURITIES
 
Section 3.01                              Amount Unlimited; Issuable in Series .  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
 
The Securities may be issued in one or more series.  There shall be established in or pursuant to a Board Resolution and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
 
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(1)                                  the title of the Securities of the series;
 
(2)                                  any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
 
(3)                                  the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
 
(4)                                  the date or dates on which the principal of the Securities of the series is payable;
 
(5)                                  the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Interest Payment Date;
 
(6)                                  the place or places where the principal of and any premium and interest on Securities of the series shall be payable;
 
(7)                                  the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company and the applicability, nonapplicability or variation of Article XI with respect to the Securities of such series;
 
(8)                                  the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
 
(9)                                  if other than denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000, the denominations in which Securities of the series shall be issuable;
 
(10)                           the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section 1.01;
 
(11)                           if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
 
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(12)                           if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated to be payable, the currency, currencies or currency units in which payment of the principal of and any premium and interest on Securities of such series as to which such election is made shall be made, and the periods within which and the terms and conditions upon which such election is to be made;
 
(13)                           if and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the Depositary or Depositaries for such Global Security or Global Securities and any circumstances other than those set forth in Section 3.05 in which any such Global Security may be transferred to, and registered and exchanged for Securities registered in the name of, a Person other than the Depositary for such Global Security or a nominee thereof and in which any such transfer may be registered;
 
(14)                           any addition to or change in the Events of Default set forth in Section 5.01 which applies to Securities of the series;
 
(15)                           if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
 
(16)                           any addition to or change in the covenants set forth in Article X which applies to Securities of the series;
 
(17)                           the applicability, nonapplicability, or variation of Article XII with respect to the Securities of such series;
 
(18)                           if applicable, that the Securities of the series shall be subject to either or both of Defeasance or Covenant Defeasance as provided in Article XIII;
 
(19)                           the terms and conditions, if any, pursuant to which the Securities are convertible into or exchangeable for any other securities;
 
(20)                           any change to the form of securities of such series prescribed by Sections 2.02 and 2.03 hereof; and
 
(21)                           the applicability, nonapplicability, or variation of Article XIV with respect to guarantees of the Securities of such series by Guarantors;
 
(22)                           any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(5)).
 
All Securities of any one series shall be identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and, subject to Section 3.03, set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto.
 
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If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series or determining the manner in which such terms shall be established.
 
The Company may, from time to time, by adoption of a Board Resolution and subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional Securities of any series of Securities (“Add On Securities”) having terms and conditions identical to those of such series of Outstanding Securities, except that such Add On Securities:
 
(A)                                may have a different issue date, initial interest accrual date or initial Interest Payment Date from such series of Outstanding Securities;
 
(B)                                may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on such series of Outstanding Securities; and
 
(C)                                may have terms specified in such Board Resolution for such Add On Securities that make appropriate adjustments to this Article III applicable to such Add On Securities in order to conform to and ensure compliance with the Securities Act (or applicable securities laws) which are not adverse in any material respect to the Holder of any Outstanding Securities (other than such Add On Securities) and which shall not affect the rights or duties of the Trustee.
 
Section 3.02                              Denominations .  The Securities of each series shall be issuable only in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.01.  In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000.
 
Section 3.03                              Execution, Authentication, Delivery and Dating .  The Securities shall be executed on behalf of the Company by any of the Executive Chairman, the Chief Executive Officer, the President, an Executive Vice President, a Senior Vice President, a Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary.  The signature of any of these officers on the Securities may be manual or facsimile.
 
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
 
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with, or pursuant to such procedures acceptable to the Trustee set forth in, the Company Order shall authenticate and deliver such Securities.  The
 
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Stated Maturity, original issue date, interest rate and any other terms of the Securities of such series may, if not previously established by a Board Resolution, Officer’s Certificate or indenture supplemental hereto pursuant to Section 3.01, be determined by or pursuant to such Company Order and procedures.  If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, (a) a copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and if the terms and form of such Securities are established by an Officer’s Certificate pursuant to general authorization of the Board of Directors, such Officer’s Certificate; (b) an executed supplemental indenture, if any; (c) an Officer’s Certificate delivered in accordance with Section 1.02; and (d) an Opinion of Counsel delivered in accordance with Section 1.02 and also stating,
 
(1)                                  if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
 
(2)                                  if the terms of such Securities, or the manner of determining such terms, have been established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms, or the manner of determining such terms, have been established in conformity with the provisions of this Indenture;
 
(3)                                  that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
 
(4)                                  that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with.
 
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
 
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.01 or the Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
 
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Each Security shall be dated the date of its authentication.
 
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.  Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
 
Section 3.04                              Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
 
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay.  After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount.  Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
 
Section 3.05                              Registration, Registration of Transfer and Exchange .  The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any other office or agency of the Company in a Place of Payment being herein sometimes referred to as the “Security Register”; provided, that, in no case shall there be more than one Security Register with respect to a series of Securities) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.  The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
 
Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount.
 
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At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered for exchange, the Company shall execute and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
 
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
 
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
 
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company or Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
 
The Company shall not be required (1) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (2) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
 
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
 
(1)                                  Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
 
(2)                                  Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable or no longer permitted under applicable law to continue as Depositary for such Global Security and the Company has not appointed a successor within 90 days of receipt of such notice or (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) the Company so directs the Trustee by Company Order, subject to
 
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the Depositary’s procedures or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
 
(3)                                  Subject to Clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
 
(4)                                  Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
 
None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
 
Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
 
Section 3.06                              Mutilated, Destroyed, Lost and Stolen Securities .  If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
 
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
 
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
 
Upon the issuance of any new Security under this Section, the Company or the Security Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
 
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Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
 
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
 
Section 3.07                              Payment of Interest; Interest Rights Preserved .  Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
 
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
 
(1)                                  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be delivered electronically or mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so delivered or mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
 
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(2)                                  In lieu of the procedure set forth in Clause (1) above, the Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
 
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
 
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date, interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date.  Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable.
 
Section 3.08                              Persons Deemed Owners .  Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
 
Section 3.09                              Cancellation .  All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it.  The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.  No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee shall be disposed of by the Trustee in its customary manner.
 
Section 3.10                              Computation of Interest .  Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
 
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Section 3.11                              CUSIP Numbers .  The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any changes in the “CUSIP” numbers.
 
ARTICLE IV
 
SATISFACTION AND DISCHARGE
 
Section 4.01                              Satisfaction and Discharge of Indenture .  This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of conversion, registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
 
(1)                                  either
 
(A)        all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
 
(B)                                all such Securities not theretofore delivered to the Trustee for cancellation (including, if applicable, upon conversion);
 
(i)                                      have become due and payable, or
 
(ii)                                   will become due and payable at their Stated Maturity within one year, or
 
(iii)                                are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
 
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(2)                                  the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
 
(3)                                  the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
 
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.06, the obligations, if any, of the Trustee to any Authenticating Agent under Section 6.11 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03, shall survive such satisfaction and discharge.
 
Section 4.02                              Application of Trust Money .  Subject to the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.  All money deposited with the Trustee pursuant to Section 4.01 (and held by it or any Paying Agent) for payment of Securities of a series that is convertible in accordance with the terms of such Securities and that are subsequently converted, shall be returned to the Company.
 
ARTICLE V
 
REMEDIES
 
Section 5.01                              Events of Default .  “Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
 
(1)                                  a default in any payment of interest on any Security of that series when due and payable and such default continues for 30 days;
 
(2)                                  a default in the payment of principal of (or premium, if any, on) any Security of that series when due and payable at its Maturity;
 
(3)                                  a default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series;
 
(4)                                  (i) a default in the observance or performance of Article VIII or (ii) a default in the observance or performance of any other covenant or agreement contained in this Indenture or applicable to such series pursuant to Section 3.01(16) (other than (a) those addressed in (1), (2) or (3) above, or (b) any covenant or warranty a default in whose performance or whose breach has expressly been included in this Indenture solely
 
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for the benefit of series of Securities other than that series) which default under this clause (ii) continues for a period of 90 days after there has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying the default and demanding that such default be remedied and stating that such notice is a “Notice of Default” hereunder;
 
(5)                                  the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
 
(A)                                commences a voluntary case;
 
(B)                                consents to the entry of an order for relief against it in an involuntary case;
 
(C)                                consents to the appointment of a Custodian of it or for any substantial part of its property;
 
(D)                                makes a general assignment for the benefit of its creditors; or takes any comparable action under any foreign laws relating to insolvency; or
 
(E)                                 takes any corporate action to authorize or effect any of the foregoing;
 
(6)                                  a court of competent jurisdiction enters an order or decree under any Bankruptcy Law:
 
(A)                                that is for relief against the Company or any Significant Subsidiary in an involuntary case;
 
(B)                                appoints a Custodian of the Company or any Significant Subsidiary or for any substantial part of its property; or
 
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(C)                                orders the winding up or liquidation of the Company or any Significant Subsidiary;
 
and such order or decree remains unstayed and in effect for 60 days; or
 
(7)                                  any other Event of Default provided with respect to the Securities of that series.
 
The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any event which is, or with the giving of notice or the lapse of time or both would become, an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
 
Section 5.02                              Acceleration of Maturity; Rescission and Annulment .  If an Event of Default (other than an Event of Default specified in Section 5.01(5) or 5.01(6) with respect to the Company) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) and unpaid interest of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.  If an Event of Default specified in Section 5.01(5) or 5.01(6) with respect to the Company with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) and unpaid interest thereon shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
 
At any time after such a declaration of acceleration or automatic acceleration with respect to Securities of any series has been made or has occurred and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration or automatic acceleration and its consequences if
 
(1)                                  the Company has paid or deposited with the Trustee a sum sufficient to pay
 
(A)                                all overdue interest on all Securities of that series,
 
(B)                                the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration or automatic acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
 
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(C)                                to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
 
(D)                                all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
 
(2)                                  all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
 
No such rescission or annulment shall affect any subsequent default or impair any right consequent thereon.
 
Section 5.03                              Collection of Indebtedness and Suits for Enforcement by Trustee .  The Company covenants that if:
 
(1)                                  default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
 
(2)                                  default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
 
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee for an express trust, may institute a judicial proceeding for the collection of the sum so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or other obligor upon the Securities of that series and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of that series, wherever situated.
 
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
 
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Section 5.04                              Trustee May File Proofs of Claim .  In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), or any of the property or creditors of the Company (or any other obligor upon the Securities), the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.06.
 
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided , however , that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
 
Section 5.05                              Trustee May Enforce Claims Without Possession of Securities .  All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
 
Section 5.06                              Application of Money Collected .  Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
 
FIRST: To the payment of all amounts due the Trustee under Section 6.06;
 
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
 
THIRD: To the payment of the balance, if any, to the Company.
 
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Section 5.07                              Limitation on Suits .  No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
 
(1)                                  such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
 
(2)                                  the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
 
(3)                                  such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
 
(4)                                  the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
 
(5)                                  no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
 
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
 
Section 5.08                              Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert .  Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and, if applicable, to convert such Security in accordance with the terms of such Securities and to institute suit for the enforcement of any such payment and right to convert, and such rights shall not be impaired without the consent of such Holder.
 
Section 5.09                              Restoration of Rights and Remedies .  If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
 
Section 5.10                              Rights and Remedies Cumulative .  Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
 
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paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
Section 5.11                              Delay or Omission Not Waiver .  No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
 
Section 5.12                              Control by Holders .  The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
 
(1)                                  such direction shall not be in conflict with any rule of law or with this Indenture,
 
(2)                                  the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
 
(3)                                  subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine, and the Trustee shall have received a legal opinion stating, that the proceedings so directed would involve the Trustee in personal liability.
 
Section 5.13                              Waiver of Past Defaults .  The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
 
(1)                                  in the payment of the principal of or any premium or interest on any Security of such series, or
 
(2)                                  in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
 
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
 
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Section 5.14                              Undertaking for Costs .  In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including reasonable attorney’s fees and expenses, against any such party litigant, having due regard to the merits and good faith of the claims or defenses made by the party litigant; provided that this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holders of the Securities, or group of Holders of the Securities, holding in the aggregate more than 10% of the principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder of the Outstanding Securities for the enforcement of the payment of principal of or any premium or interest on any Outstanding Securities held by such Holder, on or after the respective due dates expressed or provided for in such Outstanding Securities, and provided , further , that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee or, if applicable, in any suit for the enforcement of the right to convert any Security in accordance with the terms of such Security.
 
Section 5.15                              Waiver of Usury, Stay or Extension Laws .  The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
 
ARTICLE VI
 
THE TRUSTEE
 
The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and agrees to perform the same, as herein expressed.
 
Section 6.01                              Duties of Trustee .
 
(a)                                  If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.
 
(b)                                  Except during the continuance of an Event of Default:
 
(1)                                  The Trustee need perform only those duties as are specifically set forth in this Indenture and no others, and no covenants or obligations shall be implied in or read into this Indenture against the Trustee.
 
(2)                                  In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein,
 
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upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
 
(c)                                   Notwithstanding anything to the contrary contained herein, the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(1)                                  This paragraph does not limit the effect of paragraph (b) of this Section 6.01.
 
(2)                                  The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
 
(3)                                  The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received from the Holders of a majority in principal amount of the Outstanding Securities of any series pursuant to Section 5.12 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.
 
(4)                                  No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
 
(d)                                  Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.01 and to the provisions of the Trust Indenture Act.
 
(e)                                   The Trustee shall not be liable for interest on any assets received by it, except as the Trustee may agree in writing with the Company.  Assets held in trust by the Trustee need not be segregated from other assets except to the extent required by law.
 
Section 6.02                              Rights of Trustee .  Subject to Section 6.01:
 
(a)                                  The Trustee may rely conclusively and shall be protected in acting or refraining from acting on any document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper person.  The Trustee need not investigate any fact or matter stated in any document.
 
(b)                                  Before the Trustee acts or refrains from acting, it may conclusively rely on an Officer’s Certificate or an Opinion of Counsel covering such matters as it shall reasonably
 
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request.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
 
(c)                                   The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys or independent contractors and the Trustee will not be responsible for any misconduct or negligence on the part of any agent, attorney or independent contractor appointed with due care by it hereunder.
 
(d)                                  The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
 
(e)                                   The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
 
(f)                                    The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
 
(g)                                   The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon.
 
(h)                                  The Trustee shall not be deemed to have notice of any default hereunder or Event of Default unless written notice of any event which is in fact such a default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
 
(i)                                      The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
 
(j)                                     In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
 
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(k)                                  The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
 
(l)                                      Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.
 
Section 6.03                              Individual Rights of Trustee .  The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.  Any Authenticating Agent, Paying Agent or Security Registrar may do the same with like rights.  However, the Trustee must comply with Sections 6.09 and 6.10.
 
Section 6.04                              Trustee’s Disclaimer .  The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication, or the use or application of any funds received by a Paying Agent other than the Trustee.  Any Authenticating Agent shall be entitled to the benefit of the preceding sentence.  The Trustee shall not be charged with knowledge of the identity of any Significant Subsidiary unless a Responsible Officer of the Trustee shall have received notice thereof in accordance with Section 1.06 hereof from the Company or any Holder.
 
Section 6.05                              Notice of Default .  If a default with respect to Securities of any series occurs and is continuing and if it is known to the Trustee, the Trustee shall deliver to each Holder of Securities of such series notice of the uncured default within 90 days after such default occurs; provided, however, that in the case of any default of the character specified in Section 5.01(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.  Except in the case of a default in payment of principal (or premium, if any) of, or interest on, any Security (including payments pursuant to the mandatory redemption provisions of such Security, if any), the Trustee may withhold the notice if and so long as a committee of Responsible Officers in good faith determines that withholding the notice is in the interest of the Holders of Securities of such series.  For purposes of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Securities of such series.
 
Section 6.06                              Compensation and Indemnity .  The Company shall pay to the Trustee from time to time such compensation for its services as the Company and the Trustee shall from time to time agree in writing.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses made by it, including costs of collection, in addition to compensation for its services.  Such expenses shall include the reasonable
 
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compensation, disbursements and expenses of the Trustee’s agents, accountants, experts and counsel.
 
The Company shall indemnify the Trustee against any and all loss, liability, claim, damage, taxes or expense (including reasonable attorneys’ fees and expenses) incurred by or in connection with the acceptance or administration of this trust and the performance of its duties hereunder, including the costs and expense of enforcing this Indenture against the Company (including this Section 6.06) and defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its rights, powers or duties hereunder.  The Trustee shall notify the Company of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided , however , that any failure so to notify the Company shall not relieve the Company of its indemnity obligations hereunder.  The Company may, subject to the approval of the Trustee, defend the claim, and the Trustee shall provide reasonable cooperation at the Company’s expense in the defense.  The Trustee may have separate counsel and the Company shall pay the fees and expenses of such counsel; provided , however , that the Company shall not be required to pay such fees and expenses if it assumes the Trustee’s defense and, in the Trustee’s reasonable judgment, there is no conflict of interest between the Company and such parties in connection with such defense.  The Company need not pay for any written settlement made without its prior written consent, which consent will not be unreasonably delayed, conditioned or withheld.  The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct or negligence.
 
To secure the Company’s payment obligations in this Section 6.06, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Securities.
 
The Company’s payment obligations pursuant to this Section 6.06 shall survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy law or the resignation or removal of the Trustee.  Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses after the occurrence of an Event of Default specified in Section 5.01(6) or (7), the expenses are intended to constitute expenses of administration under the Bankruptcy Law.
 
The provisions of this Section shall survive the termination of this Indenture.
 
Section 6.07                              Replacement of Trustee .  The Trustee may resign at any time with respect to the Securities of one or more series by so notifying the Company in writing 30 days prior to the effectiveness of such resignation.  The Holder or Holders of a majority in principal amount of the Outstanding Securities of a series may remove the Trustee with respect to Securities of such series by so notifying the Company and the Trustee in writing 30 days prior to the effectiveness of such removal.  The Company may remove the Trustee if:
 
(1)                                  the Trustee fails to comply with Section 6.09;
 
(2)                                  the Trustee is adjudged bankrupt or insolvent;
 
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(3)                                  a receiver, custodian, or other public officer takes charge of the Trustee or its property; or
 
(4)                                  the Trustee becomes incapable of acting.
 
With respect to the Securities of one or more series, if the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Outstanding Securities of that series, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee with respect to Securities of that or those series.  If, within one year after such resignation or removal or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with this Section 6.07, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.
 
A successor Trustee with respect to one or more series of Securities shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.  Thereupon the resignation or removal of the retiring Trustee with respect to such series of Securities shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture with respect to such series of Securities.  The successor Trustee shall mail a notice of its succession to each Holder of Securities of that or those series.  The retiring Trustee shall (upon payment of its charges hereunder) promptly transfer all property held by it as Trustee with respect to such series of Securities to the successor Trustee, subject to the lien provided for in Section 6.06.
 
If a successor Trustee with respect to a series of Securities does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s expense), the Company or the Holder or Holders of at least 10% in principal amount of the Outstanding Securities of that series may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
 
If the Trustee fails to comply with Section 6.09, unless the Trustee’s duty to resign is stayed as provided in Trust Indenture Act Section 310(b), any Holder who has been a bona fide holder of Securities of a series for at least six months may petition any court of competent jurisdiction for the removal of the Trustee with respect to such series and the appointment of a successor Trustee with respect to such series.
 
Notwithstanding replacement of the Trustee pursuant to this Section 6.07, the Company’s obligations under Section 6.06 shall continue for the benefit of the retiring Trustee.
 
Section 6.08                              Successor Trustee by Merger, Etc.   If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation
 
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without any further act shall, if such resulting, surviving or transferee corporation is otherwise qualified and eligible hereunder, be the successor Trustee.
 
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
 
Section 6.09                              Eligibility; Disqualification .  The Trustee shall at all times satisfy the requirements of Trust Indenture Act Section 310(a)(1) and Trust Indenture Act Section 310(a)(5).  The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.  The Trustee shall comply with Trust Indenture Act Section 310(b), subject to its right to apply for a stay of its duty to resign under the penultimate paragraph of Trust Indenture Act Section 310(b); provided , however , that there shall be excluded from the operation of Trust Indenture Act Section 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in Trust Indenture Act Section 310(b)(1) are met.
 
Section 6.10                              Preferential Collection of Claims against Company .  The Trustee shall comply with Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b).  A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated.
 
Section 6.11                              Appointment of Authenticating Agent .  The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.  Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority.  If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
 
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its most recent report of condition so published.  If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
 
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
 
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company.  The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.07 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.  No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
 
Except with respect to an Authenticating Agent appointed at the request of the Company, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.06.
 
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
 
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 	Wells Fargo Bank, National Association, As Trustee	
 	 	
 	By:	 	
 	 	as Authenticating Agent	

 	By:	 	
 	 	as Authenticating Agent	
 
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ARTICLE VII
 
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
 
Section 7.01                              Company to Furnish Trustee Names and Addresses of Holders .  The Company will furnish or cause to be furnished to the Trustee:
 
(1)                                  semi-annually, not more than 15 days after each Regular Record Date, a list for each series of Securities, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the Regular Record Date, and
 
(2)                                  at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
 
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
 
Section 7.02                              Preservation of Information; Communications to Holders .  The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
 
The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
 
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
 
Section 7.03                              Reports by Trustee .  The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than November 15 in each calendar year, commencing in the year in which this Indenture is executed.
 
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company.  The Company will notify the Trustee, in writing, when any Securities are listed on any stock exchange or delisted therefrom.
 
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Section 7.04                              Reports by Company .  The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is filed with the Commission.  Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
 
ARTICLE VIII
 
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
Section 8.01                              Company May Merge, Etc., Only on Certain Terms .  The Company may not, in a single transaction or a series of related transactions:
 
(a)                                  consolidate or merge with or into any other Person or permit any other Person to consolidate or merge with or into the Company, or
 
(b)                                  directly or indirectly transfer, sell, lease or otherwise dispose of all or substantially all of its assets, unless:
 
(1)                                  in a transaction in which the Company does not survive or in which the Company sells, leases or otherwise disposes of all or substantially all of its assets, the successor entity to the Company (A) is organized under the laws of the United States or any State thereof or the District of Columbia, and (B) shall expressly assume, by a supplemental indenture executed and delivered to the Trustee in a form reasonably satisfactory to the Trustee, all of the Company’s obligations under the Securities and this Indenture;
 
(2)                                  immediately before and after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and
 
(3)                                  the Company and the successor Person have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance, lease, sale, disposition or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
 
Section 8.02                              Amalgamations, Mergers, Consolidations and Certain Sales of Assets by Guarantors .
 
(a) Except with respect to the Securities of any series whose terms permit such transactions as an asset sale, no Guarantor shall, and the Company shall not permit any Guarantor to, (i) amalgamate, consolidate or merge with or into, or (ii) directly or indirectly
 
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transfer, sell, lease or otherwise dispose of (other than pursuant to a charter or lease of a vessel in the ordinary course of business) its properties and assets substantially as an entirety to, any other Person (other than the Company or another Guarantor) unless, in any such transaction:
 
(1)                                in the case such Guarantor shall amalgamate, consolidate or merge with or into another Person or shall directly or indirectly sell, transfer or lease (other than a charter or lease of a vessel in the ordinary course of business) its properties and assets substantially as an entirety, the Person formed by such consolidation with or into which such Guarantor is amalgamated or merged, or the Person which acquires by transfer, sale or lease (other than a charter or lease of a vessel in the ordinary course of business) the properties and assets of such Guarantor substantially as an entirety (for purposes of this Article VIII, a “Successor Guarantor”), shall be organized under the laws of the United States or any State thereof or the District of Columbia;
 
(2)                                the Successor Guarantor shall expressly assume by an indenture supplemental hereto executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of all obligations of such Guarantor under its Guarantee and the Indenture and the performance of every covenant of this Indenture on the part of such Guarantor to be performed or observed;
 
(3)                            immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
 
(4)                                  the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
 
The provisions of this Section 8.02 shall not be applicable to any series of Securities unless, and only to the extent that, the terms of a particular series of Securities so provide.
 
Section 8.03                              Successor Person Substituted .  Upon any consolidation or merger or any transfer of assets in accordance with Section 8.01, the surviving Person formed by such consolidation or into which the Company is merged or to which such sale, transfer or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such surviving Person had been named as the Company herein. When a surviving Person duly assumes all of the obligations of the Company pursuant hereto and pursuant to the Securities, the predecessor shall be relieved of the performance and observance of all obligations and covenants of this Indenture and the Securities, including but not limited to the obligation to make payment of the principal of (and premium, if any) and interest on all the Securities then outstanding, and the Company may thereupon or any time thereafter be liquidated and dissolved.
 
Except with respect to the Securities of any series whose terms permit such transactions as an asset sale, upon any consolidation, amalgamation or merger of a Guarantor with or into, or
 
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any sale, transfer or lease of the properties and assets of such Guarantor substantially as an entirety in accordance with Section 8.02 to, a Person other than the Company or another Guarantor, the Successor Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, such Guarantor under this Indenture with the same effect as if such Successor Guarantor had been named as a Guarantor herein, and thereafter the predecessor Guarantor shall be relieved of all obligations and covenants under this Indenture and the Securities.
 
ARTICLE IX
 
SUPPLEMENTAL INDENTURES
 
Section 9.01                              Supplemental Indentures Without Consent of Holders .  Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
 
(1)                                  to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities;
 
(2)                                  to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
 
(3)                                  to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series);
 
(4)                                  to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
 
(5)                                  to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) adversely affect the rights of the Holder of any such Security of such other series in any material respect as evidenced by an Officers’ Certificate or (B) shall become effective only when there is no Security of the affected series Outstanding;
 
(6)                                  to secure the Securities;
 
(7)                                  to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01;
 
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(8)                                  to permit or facilitate the issuance of uncertificated Securities in addition to or in place of certificated Securities;
 
(9)                                  to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, as permitted by Section 6.07;
 
(10)                           to make provisions with respect to the conversion rights of Holders of Securities of a series that by their terms are convertible;
 
(11)                           to cure any ambiguity, omission or mistake, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this clause (12) shall not adversely affect the interests of the Holders of Securities of any series in any material respect as evidenced by an Officer’s Certificate;
 
(12)                           to conform any provision of this Indenture to the “Description of Debt Securities” contained in the Prospectus or any similar provision contained in any supplement to the Prospectus relating to an offering of debt securities under this Indenture;
 
(13)                           to comply with any requirements of the Trust Indenture Act or the requirements of the Commission in connection with maintaining the qualification of this Indenture under the Trust Indenture Act; or
 
(14)                           to make any change that does not adversely affect the rights of the Holders of Securities of each series affected by such change in any material respect.
 
Section 9.02                              Supplemental Indentures with Consent of Holders .  With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each series so affected:
 
(1)                                  change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit
 
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for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or adversely affect the right to convert any Security as provided in the terms of such Security, or modify the provisions of this Indenture with respect to the ranking of the Securities in a manner adverse to the Holders;
 
(2)                                  reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
 
(3)                                  modify any of the provisions of this Section, Section 5.13 or Section 10.06, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby;
 
(4)                                  adversely affect any right of repayment or repurchase at the option of the Holder; or
 
(5)                                  reduce or postpone any sinking fund or similar provision.
 
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
 
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
 
Section 9.03                              Execution of Supplemental Indentures .  In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be given, and (subject to Section 6.01) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, that all conditions precedent in the Indenture to the execution of the supplemental indenture have been complied with, and that the supplemental indenture is a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms.  The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
 
Section 9.04                              Effect of Supplemental Indentures .  Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
 
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Section 9.05                              Conformity with Trust Indenture Act .  Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
 
Section 9.06                              Reference in Securities to Supplemental Indentures .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company, and such new Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
 
ARTICLE X
 
COVENANTS
 
Section 10.01                       Payment of Securities .  The Company covenants and agrees for the benefit of each series of Securities that it will pay the principal of and interest on the Securities of that series on the dates and in the manner provided in the Securities of that series and this Indenture.  An installment of principal, premium, if any, or interest on the Securities shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the Company or an Affiliate of the Company) holds for the benefit of the Holders, on that date, immediately available funds deposited and designated for and sufficient to pay the installment.
 
The Company shall pay interest on overdue principal and on overdue installments of interest at the rate specified in the Securities compounded semi-annually, to the extent lawful.
 
Section 10.02                       Maintenance of Office or Agency .  The Company shall maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of any series that is convertible may be surrendered for conversion, and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
 
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes.  The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.  The Company hereby
 
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initially designates the Corporate Trust Office as such agency of the Company for the foregoing purposes.
 
Section 10.03                       Money for Securities Payments to Be Held in Trust .  If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
 
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
 
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee and the Company, subject to the provisions of this Section, that such Paying Agent will:
 
(1)                                  Hold all sums held by it for the payment of the principal of, premium, if any, or interest on Securities of such series for the benefit of the Persons entitled thereto until such sum shall be paid to such Persons or otherwise disposed of as herein provided;
 
(2)                                  Give the Trustee written notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal, premium, if any, or interest; and
 
(3)                                  Any time during the continuance of such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by such Paying Agent.
 
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
 
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability
 
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of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York City, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
 
Section 10.04                       Corporate Existence .  Subject to Article VIII, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents and its rights (charter and statutory) and corporate franchises; provided , however , that the Company shall not be required to preserve any right or franchise, if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole.
 
Section 10.05                       Compliance Certificate .  The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate complying with Section 314(a)(4) of the Trust Indenture Act and stating, as to each such officer signing such certificate, whether or not the signer knows of any failure by the Company or any Subsidiary of the Company to comply with any conditions or covenants in this Indenture and, if such signer does know of such a failure to comply, the certificate shall describe such failure with particularity.  The Officer’s Certificate shall also notify the Trustee should the relevant fiscal year end on any date other than the current fiscal year end date.
 
Section 10.06                       Waiver of Certain Covenants .  Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(16), 9.01(2) or 9.01(7) for the benefit of the Holders of such series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
 
ARTICLE XI
 
REDEMPTION OF SECURITIES
 
Section 11.01                       Applicability of Article .  Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
 
Section 11.02                       Election to Redeem; Notice to Trustee .  The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.  In case of any redemption at
 
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the election of the Company of the Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.  In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
 
Section 11.03                       Selection by Trustee of Securities to Be Redeemed .  If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date from the Outstanding Securities of such series not previously called for redemption, by lot or, if the Securities to be redeemed are Global Securities, pursuant to the applicable procedures of the Depositary, and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.
 
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption.  Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
 
The Trustee shall notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
 
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part.  In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
 
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
 
Section 11.04                       Notice of Redemption .  Notice of redemption shall be delivered electronically or by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
 
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All notices of redemption shall state:
 
(1)                                  the Redemption Date,
 
(2)                                  the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
 
(3)                                  if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed), the identification (and, in the case of partial redemption of any Securities, the principal amount) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series constituting a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
 
(4)                                  that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
 
(5)                                  in the case of any Securities that are convertible pursuant to the terms of such Securities, the conversion price or rate, the date on which the right to convert the principal of the Securities to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion,
 
(6)                                  the place or places where such Securities are to be surrendered for payment of the Redemption Price,
 
(7)                                  that the redemption is for a sinking fund, if such is the case, and
 
(8)                                  applicable CUSIP Numbers and the statement in Section 3.11.
 
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request and with the notice information provided to the Trustee, by the Trustee in the name and at the expense of the Company and shall be irrevocable; provided , in the latter case, the Company will give the Trustee at least ten days’ prior notice of the date of the giving of the notice (unless a shorter notice shall be satisfactory to the Trustee).  Notice of redemption of Securities to be redeemed at the election of the Company received by the Trustee shall be given by the Trustee to each Paying Agent in the name of and at the expense of the Company.
 
Section 11.05                       Deposit of Redemption Price .  At or prior to 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date (unless otherwise specified as contemplated by Section 3.01)) accrued interest on, all the Securities which are to be redeemed on that date other than any Securities called for redemption on that date which have been converted prior to the date of such deposit.
 
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If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 3.07) be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
 
Section 11.06                       Securities Payable on Redemption Date .  Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest.  Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided , however , that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
 
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
 
Section 11.07                       Securities Redeemed in Part .  Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
 
ARTICLE XII
 
SINKING FUNDS
 
Section 12.01                       Applicability of Article .  The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
 
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.  If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02.  Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
 
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Section 12.02                       Satisfaction of Sinking Fund Payments with Securities .  The Company (1) may deliver Outstanding Securities of a series (other than any Securities previously called for redemption) and (2) may apply as a credit Securities of a series which have been converted pursuant to the terms of such Securities or which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited.  Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
 
Section 12.03                       Redemption of Securities for Sinking Fund .  Not less than 45 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02 and the basis for such credit, and will also deliver to the Trustee any Securities to be so delivered.  Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04.  Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
 
ARTICLE XIII
 
DEFEASANCE AND COVENANT DEFEASANCE
 
Section 13.01                       Company’s Option to Effect Defeasance or Covenant Defeasance .  The Company may elect, at its option by Board Resolution at any time, to have either Section 13.02 or Section 13.03 applied to the Outstanding Securities of any series designated pursuant to Section 3.01 as being defeasible pursuant to this Article XIII (hereinafter called a “Defeasible Series”), upon compliance with the conditions set forth below in this Article XIII.
 
Section 13.02                       Defeasance and Discharge .  Upon the Company’s exercise of the option provided in Section 13.01 to have this Section 13.02 applied to the Outstanding Securities of any Defeasible Series, the Company shall be deemed to have been discharged from its obligations, with respect to the Outstanding Securities of such series, as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”).  For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and this Indenture with respect to such Securities (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same provided to it by the Company), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights
 
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of Holders of Securities of such series to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities of such series when payments are due, (2) the Company’s obligations with respect to the Securities of such series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article XIII.  Subject to compliance with this Article XIII, the Company may exercise its option provided in Section 13.01 to have this Section 13.02 applied to the Outstanding Securities of any Defeasible Series notwithstanding the prior exercise of its option provided in Section 13.01 to have Section 13.03 applied to the Outstanding Securities of such series.
 
Section 13.03                       Covenant Defeasance .  Upon the Company’s exercise of the option provided in Section 13.01 to have this Section 13.03 applied to the Outstanding Securities of any Defeasible Series, (1) the Company shall be released from its obligations under Section 8.01, Section 10.04, and such other covenants as may have been made applicable to such Defeasible Series pursuant to Sections 3.01(16), 9.01(2) and 9.01(7) and (2) the occurrence of any event specified in Sections 5.01 (3), 5.01(4) (with respect to any of Sections 8.01 or 10.04 or such other applicable covenants referred to in the preceding clause (1)) and 5.01(5) shall be deemed not to be or result in an Event of Default (hereinafter called “Covenant Defeasance”).  For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01 (4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected  thereby; provided that notwithstanding a Covenant Defeasance with respect to Section 8.01, any Person to whom a transfer, sale, lease or other disposition is made pursuant to Section 8.01, shall as a condition to such transfer, sale, lease or other disposition, assume by an indenture supplemental hereto in form satisfactory to the Trustee, executed by such successor Person and delivered to the Trustee, the obligations of the Company to the Trustee under Section 6.06 and the second to the last paragraph of Section 13.05.
 
Section 13.04                       Conditions to Defeasance or Covenant Defeasance .  The following shall be the conditions to application of either Section 13.02 or Section 13.03 to the Outstanding Securities of any Defeasible Series:
 
(1)                                  The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article XIII applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Outstanding Securities of such series, (A) money in an amount, or (B) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
 
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and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on the Securities of such series on the respective Stated Maturities or on redemption, in accordance with the terms of this Indenture and the Securities of such series.  As used herein, “U.S. Government Obligation” means (x) any security that is (i) a direct obligation of the United States of America for the payment of which full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation specified in Clause (x) and held by such custodian for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any such U.S. Government Obligation, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
 
(2)                                  In the case of an election under Section 13.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date first set forth hereinabove, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
 
(3)                                  In the case of an election under Section 13.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
 
(4)                                  After giving pro forma effect to such Defeasance or Covenant Defeasance, no Event of Default or event that (after notice or lapse of time or both) would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(6) and (7), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
 
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(5)                                  Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all Securities Outstanding hereunder were in default within the meaning of the Trust Indenture Act.
 
(6)                                  Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
 
(7)                                  The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that any trust resulting from the deposit under this Section does not require registration under the U.S. Investment Company Act of 1940, as amended.
 
(8)                                  If the Securities of such series are to be redeemed, either notice of such redemption shall have been given or the Company shall have given the Trustee irrevocable directions to give notice of such redemption in the name, and at the expense of, the Company, under arrangements satisfactory to the Trustee.
 
(9)                                  The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
 
Section 13.05                       Deposited Money and U.S. Government Obligations to be Held in Trust;  Other Miscellaneous Provisions .  Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.04 in respect of the Securities of any Defeasible Series shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities of such series and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of Securities of such series, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
 
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities.
 
Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to Securities of any Defeasible Series that, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such series.
 
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Section 13.06                       Reinstatement .  If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article XIII with respect to the Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture with respect to the Securities of such series and under such Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article XIII with respect to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.05 with respect to Securities of such series in accordance with this Article XIII; provided , however , that if the Company makes any payment of principal of or any premium or interest on any Security of such series following the reinstatement of its obligations, the Company, as the case may be, shall be subrogated to the rights of the Holders of Securities of such series to receive such payment from the money so held in trust.
 
Section 13.07                       Qualifying Trustee .  Any trustee appointed pursuant to Section 13.04 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related Defeasance or Covenant Defeasance have been complied with.  In no event shall the Trustee be liable for any acts or omissions of said trustee.
 
ARTICLE XIV
 
GUARANTORS
 
Section 14.01                       Guarantee .  Each of the Guarantors hereby jointly and severally unconditionally Guarantees to each Holder of a Security of a series as to which it is a Guarantor authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the due and punctual payment of the principal of (and premium, if any) and interest on such Security when and as the same shall become due and payable, whether at the Stated Maturity, by acceleration, call for redemption, purchase or otherwise, in accordance with the terms of such Security and of this Indenture. In case of the failure of the Company punctually to make any such payment, each of the Guarantors hereby jointly and severally agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call for redemption, purchase or otherwise, and as if such payment were made by the Company.
 
Each of the Guarantors hereby jointly and severally agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of such Security or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee of all or any of the Securities, the election by the Trustee or any of the Holders in any proceeding under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) of the application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security interest by the Company, as debtor-in-possession, under Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the
 
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claims of the Trustee or any of the Holders for payment of any of the Securities, any waiver or consent by the Holder of such Security or by the Trustee with respect to any provisions thereof or of this Indenture, the obtaining of any judgment against the Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each of the Guarantors hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other Lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this Guarantee. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Security, whether at their Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce this Guarantee without first proceeding against the Company. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default with respect to the Securities of the series as to which it is a Guarantor, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Securities of such series, to collect interest on the Securities of such series, or to enforce or exercise any other right or remedy with respect to the Securities of such series, or the Trustee or the Holders are prevented from taking any action to realize on any collateral, such Guarantor agrees to pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
 
Each Guarantor shall be subrogated to all rights of the Holders of the Securities upon which its Guarantee is endorsed against the Company in respect of any amounts paid by such Guarantor on account of such Security pursuant to the provisions of its Guarantee or this Indenture; provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any) and interest on all Securities issued hereunder as to which such Guarantor is a Guarantor shall have been paid in full.
 
Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent
 
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permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
 
The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
 
Section 14.02                       Execution and Delivery of Guarantees .  The Guarantees to be endorsed on the Securities of any series shall include the terms of the Guarantee set forth in Section 14.01 and any other terms that may be set forth in the form established pursuant to Section 2.06. Each of the Guarantors hereby agrees to execute its Guarantee, in a form established pursuant to Section 2.06, to be endorsed on each Security as to which it is a Guarantor authenticated and delivered by the Trustee.
 
The Guarantee shall be executed on behalf of each respective Guarantor by any one of such Guarantor’s Chairman of the Board, Deputy or Vice Chairman of the Board, President, Vice President or other person duly authorized by the Board of Directors of such Guarantor, attested by its Secretary or Assistant Secretary. The signature of any or all of these persons on the Guarantee may be manual or facsimile.
 
A Guarantee bearing the manual or facsimile signature of individuals who were at any time the proper officers of a Guarantor shall bind such Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of the Security on which such Guarantee is endorsed or did not hold such offices at the date of such Guarantee.
 
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantors. Each of the Guarantors hereby jointly and severally agrees that its Guarantee set forth in Section 13.01 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Security.
 
Section 14.03                       Guarantors May Consolidate, Etc., on Certain Terms .  Except as set forth in Section 13.04 and in Article VIII and the terms of the Securities, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation, amalgamation or merger of a Guarantor with or into the Company or another Guarantor or shall prevent any conveyance, transfer or lease of the property and assets of a Guarantor substantially as an entirety to the Company or another Guarantor.
 
Section 14.04                       Release of Guarantors .
 
(a) Concurrently with any consolidation, amalgamation or merger of a Guarantor or any conveyance, transfer or lease of the property of a Guarantor as an entirety or substantially as an entirety, in each case as permitted by Section 14.03 hereof, and upon delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such consolidation, amalgamation, merger, conveyance, transfer or lease was made in accordance with Section 13.03 hereof, the Trustee shall execute any documents reasonably required in order to acknowledge the release of such Guarantor from its obligations under its Guarantee endorsed
 
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on the Securities and under this Article XIV. Any Guarantor not released from its obligations under its Guarantee endorsed on the Securities and under this Article XIV shall remain liable for the full amount of principal of (and premium, if any) and interest on the Securities of a series as to which it is a Guarantor and for the other obligations of a Guarantor under its Guarantee endorsed on such Securities and under this Article XIV.
 
(b) Concurrently with the defeasance of the Securities under Section 13.02 hereof, the Guarantors shall be released from all of their obligations under their Guarantees endorsed on the Securities and under this Article XIV, without any action on the part of the Trustee or any Holder of Securities.
 
(c) Upon the sale or disposition (by merger or otherwise) of any Guarantor by the Company or any Restricted Subsidiary of the Company constituting an asset sale permitted under the terms of the Securities of any series to a Person other than the Company or a Guarantor of the Company and which is otherwise in compliance with the terms of this Indenture and the terms of the Securities of such series, such Guarantor shall automatically be released from all obligations under its Guarantees endorsed on the Securities of such series and under this Article XIV, provided that all other obligations of such Guarantor with respect to any Indebtedness of the Company or any Subsidiary of the Company shall also terminate upon such transaction.
 
Section 14.05                       Additional Guarantors .
 
(a) The Company may cause any of its Subsidiaries to become a Guarantor with respect to the Securities by executing and delivering to the Trustee (a) a supplemental indenture, in form and substance satisfactory to the Trustee, which subjects such Person to the provisions (including the representations and warranties) of this Indenture as a Guarantor and (b) an Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and executed by such Person and constitutes the legal, valid, binding and enforceable obligation of such Person (subject to such customary exceptions concerning creditors’ rights and equitable principles as may be acceptable to the Trustee in its discretion).
 
(b) The Company will cause any Subsidiary of the Company that is required under the terms of the Securities of any series to become a Guarantor to execute a supplemental indenture pursuant to which it shall become a Guarantor.
 
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
 
(Signature Page to Follow)
 
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 	BOOT BARN HOLDINGS, INC.	
 	 	 	
 	By:	 	
 	 	Name:	
 	 	Title:	

 	Trustee:	 	
 	 	 	
 	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely as Trustee	

 	By:	 	
 	 	Name:	
 	 	Title:	

 

 	Guarantors:	
 	 	
 	BASKINS ACQUISITION HOLDINGS, LLC	
 	 	 	
 	By:	 	
 	Name:	 	
 	Title:	 	

 	BOOT BARN, INC.	
 	 	 	
 	By:	 	
 	 	Name:	
 	 	Title:	

 	RCC WESTERN STORES, INC.	
 	 	
 	By:	 	
 	 	Name:	
 	 	Title:	

 	SHEPLERS HOLDING CORPORATION	
 	 	 	
 	By:	 	
 	 	Name:	
 	 	Title:	

 	SHEPLERS, INC.	
 	 	 	
 	By:	 	
 	 	Name:	
 	 	Title:	

Exhibit 5.1
 
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
 
November 22, 2017
 
Boot Barn Holdings, Inc.
15345 Barranca Parkway
Irvine, California 92618
 
Re:                              Boot Barn Holdings, Inc.’s Registration Statement on Form S-3
 
Ladies and Gentlemen:
 
We have acted as counsel for Boot Barn Holdings, Inc., a Delaware corporation (the “ Company ”), in connection with its filing of a Registration Statement on Form S-3 under the Securities Act of 1933, as amended (the “ Act ”), with the Securities and Exchange Commission (the “ Commission ”) on the date hereof (the “ Registration Statement ”).  The Registration Statement relates to the offer and sale by the Company pursuant to Rule 415 under the Act from time to time, in one or more offerings, as set forth in the prospectus contained in the Registration Statement (the “ Prospectus ”) and as shall be set forth in one or more supplements to the Prospectus (each, a “ Prospectus Supplement ”), of securities (the “ Securities ”), which may include any or all of the following: (i) shares of the Company’s common stock, par value $0.0001 per share (“ Common Stock ”); (ii) shares of one or more series of the Company’s preferred stock, par value $0.0001 per share (“ Preferred Stock ”); (iii) one or more series of the Company’s debt securities (the “ Debt Securities ”); (iv) guarantees (“ Guarantees ”) of the Debt Securities by subsidiaries of the Company (the “ Guarantors ”); (v) warrants to purchase shares of Common Stock, Preferred Stock, Debt Securities, Depository Shares (as defined below) or securities of third parties or other rights or any combination thereof (“ Warrants ”); and (vi) depository shares representing an interest in Preferred Stock (“ Depository Shares ”). The Registration Statement also relates to the offer and sale of Common Stock by certain stockholders of the Company (the “ Selling Stockholders ”).
 
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
 
In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of (i) the Amended and Restated Certificate of Incorporation of the Company (the “ Certificate of Incorporation ”) and By-laws of the Company (the “ By-laws ”), each as amended to date; (ii) the organizational documents of each of Baskins Acquisition Holdings, LLC, Boot Barn, Inc. and Sheplers Holding Corporation; (iii) the form of Indenture to be entered into by the Company and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), pursuant to which the Debt Securities and Guarantees are to be issued from time to time (the “ Indenture ”), and (iv) such other documents, records and other instruments as we have deemed appropriate for purposes of the opinions set forth herein.

 
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile, pdf or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.  With respect to matters of fact relevant to our opinions as set forth below, we have relied upon certificates of officers of the Company and the Guarantors, representations made by the Company and the Guarantors in documents examined by us and representations of officers of the Company and the Guarantors.  We have also obtained and relied upon such certificates and assurances from public officials as we have deemed necessary for the purposes of our opinions set forth below.
 
We have also assumed that (i) the Registration Statement and any amendments thereto will have become effective and comply with all applicable laws and no stop order suspending the Registration Statement’s effectiveness will have been issued and remain in effect, in each case, at the time any Securities are offered and sold as contemplated by the Registration Statement, (ii) in connection with any offer and sale of Securities, a prospectus supplement will have been prepared and filed with the Commission in accordance with the rules and regulations of the Commission, which in the case of an offer and sale of Common Stock by Selling Stockholders, will identify such Selling Stockholders and the shares of Common Stock to be offered and sold thereby, and (iii) all Securities will be offered and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable prospectus supplement.
 
Based upon the foregoing examination and in reliance thereon, and subject to (x) the assumptions stated and in reliance on statements of fact contained in the documents that we have examined and (y) completion of all corporate action required to be taken by the Company and the Guarantors to duly authorize each proposed issuance of Securities (including the due reservation of any shares of Common Stock or Preferred Stock for issuance upon conversion or exchange of any other Securities), we are of the opinion that:
 
1.               With respect to Common Stock to be offered and sold by the Company, when the shares of Common Stock have been issued and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, such shares of Common Stock will be validly issued, fully paid and non-assessable. The shares of Common Stock to be offered and sold by the Selling Stockholders are validly issued, fully paid and non-assessable.
 
2.               With respect to Preferred Stock, when (a) if applicable, the Preferred Stock to be issued has been fixed in accordance with the Certificate of Incorporation by the Board of Directors by appropriate corporate action and (b) the shares of Preferred Stock have been issued and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the shares of Preferred Stock will be validly issued, fully paid and non-assessable.
 
3.               With respect to Debt Securities to be issued under the Indenture, when (a) the terms of the Debt Securities have been established in accordance with the Indenture, (b) the Indenture and the applicable supplement thereto, if any, has been duly authorized and validly executed and delivered by the Company and the Trustee and (c) the Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Indenture and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Debt Securities will constitute legal, valid and binding obligations of the Company.
 
4.               With respect to the Guarantees to be issued under the Indenture, when (a) the terms of the Guarantees and the applicable Debt Securities and guarantees have been established in accordance with the Indenture, (b) the Indenture and the applicable supplement thereto, if any, has been duly authorized and validly executed and delivered by the Company, the Guarantors and the Trustee and (c) the Guarantees and the applicable Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Indenture and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for
 
2 

 
therein, the Guarantees will constitute legal, valid and binding obligations of the Guarantors.
 
5.               With respect to Common Stock or Preferred Stock to be issued upon conversion of the Debt Securities or Preferred Stock, when (a) if applicable, the Preferred Stock to be issued has been fixed in accordance with the Certificate of Incorporation by the Board of Directors by appropriate corporate action and (b) such Common Stock or Preferred Stock, as the case may be, has been issued and delivered in accordance with the terms of the applicable Debt Securities or Preferred Stock, as the case may be, such shares of Common Stock or Preferred Stock will be validly issued, fully paid and non-assessable.
 
6.               With respect to Depository Shares, when (a) a deposit agreement relating to the Depository Shares (the “ Deposit Agreement ”) has been duly authorized and validly executed and delivered by the Company and each other party thereto, (b) the underlying Preferred Stock for the Depository Shares that is not fixed in the Certificate of Incorporation has been fixed by the Board of Directors by appropriate corporate action and (c) the Depository Shares have been issued and delivered in accordance with the Deposit Agreement and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided therein, the Depository Shares will be validly issued, fully paid and non-assessable.
 
7.               With respect to the Warrants, when (a) a warrant agreement relating to the Warrants (the “ Warrant Agreement ”) has been duly authorized and validly executed and delivered by the Company and each other party thereto, (b) the terms of the Warrants have been established in accordance with the Warrant Agreement and (c) the Warrants have been executed and delivered in accordance with the related Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided therein, the Warrants will be legal, valid and binding obligations of the Company.
 
The opinions set forth in paragraphs 3, 4 and 7 above are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws relating to or affecting the rights and remedies of creditors generally, including the effect of statutory or other laws regarding fraudulent transfers or preferential transfers, (ii) the discretion of the court before which any proceeding may be brought, general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies, regardless of whether enforceability is considered in a proceeding in equity or at law, and (iii) limitations on enforceability to the extent that acceleration of indebtedness under any Debt Security may impair collectability of that portion, if any, of the principal amount thereof that might be determined to be unearned interest thereon.  We express no opinion regarding the effectiveness of (x) any waiver of stay, extension or usury laws or of unknown future rights, or (y) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to federal or state securities laws.
 
We render the foregoing opinion as members of the bar of the State of New York and express no opinion as to laws other than the laws of the State of New York, the federal laws of the
 
3 

 
United States of America , the Delaware General Corporation Law and the Delaware Limited Liability Company Act.  For the purposes of paragraph 4 above, we have relied with their respective consent on (i) the opinion of Biggs Paul LLC filed as an exhibit to the Registration Statement to the effect that when the conditions specified in clauses (a), (b) and (c) of paragraph 4 have been met, the Guarantees of Sheplers, Inc. will constitute the legal, valid and binding obligations thereof under Kansas law, and (ii) the opinion of Gunderson, Palmer, Nelson & Ashmore, LLP filed as an exhibit to the Registration Statement to the effect that when the conditions specified in clauses (a), (b) and (c) of paragraph 4 have been met, the Guarantees of RCC Western Stores, Inc. will constitute the legal, valid and binding obligations thereof under South Dakota law. 
 
Although the Securities may be issued from time to time on a delayed or continuous basis, the opinions expressed herein are limited to the laws, including rules and regulations, as in effect on the date hereof.
 
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus.  In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
 
Very truly yours,
 
/s/ Morgan, Lewis & Bockius LLP
 
4 

Exhibit 5.2

 
November 22, 2017
 
Boot Barn Holdings, Inc.
15345 Barranca Parkway
Irvine, California 92618
 
Re:          Boot Barn Holdings, Inc.’s Registration Statement on Form S-3
 
Ladies and Gentlemen:
 
We have acted as special Kansas legal counsel for Boot Barn Holdings, Inc., a Delaware corporation (the “ Company ”), and its subsidiary, Sheplers, Inc., a Kansas corporation (“Sheplers”), in connection with its filing of a Registration Statement on Form S-3 under the Securities Act of 1933, as amended (the “ Act ”), with the Securities and Exchange Commission (the “ Commission ”) on the date hereof (the “ Registration Statement ”).  The Registration Statement relates to the offer and sale by the Company pursuant to Rule 415 under the Act from time to time, in one or more offerings, as set forth in the prospectus contained in the Registration Statement (the “ Prospectus ”) and as shall be set forth in one or more supplements to the Prospectus (each, a “ Prospectus Supplement ”), of securities (the “ Securities ”), which may include any or all of the following: (i) shares of the Company’s common stock, par value $0.0001 per share (“ Common Stock ”); (ii) shares of one or more series of the Company’s preferred stock, par value $0.0001 per share (“ Preferred Stock ”); (iii) one or more series of the Company’s debt securities (the “ Debt Securities ”); (iv) guarantees (“ Guarantees ”) of the Debt Securities by subsidiaries of the Company (“Guarantors”), including by Sheplers (the “ Shepler Guarantees ”); (v) warrants to purchase shares of Common Stock, Preferred Stock, Debt Securities, Depository Shares (as defined below) or securities of third parties or other rights or any combination thereof (“ Warrants ”); and (vi) depository shares representing an interest in Preferred Stock (“ Depository Shares ”).  The Registration Statement also relates to the offer and sale of Common Stock by certain stockholders of the Company .
 
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
 
In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of (i)  the organizational documents of Sheplers; (ii) the form of Indenture (the “ Indenture ”) to be entered into by the Company and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), pursuant to which the Debt Securities and Guarantees, including the Shepler Guarantees, are to be issued from time to time, (iii) the Articles of Incorporation of Sheplers certified by the Secretary of State of the State of Kansas as of June 12, 2015 and certified by an officer of Sheplers as of the date hereof as being true, complete and correct and in full force and effect; (v) the Bylaws of Sheplers certified by an officer of Sheplers as of the date hereof as being true, complete and correct and in full force and effect; and  (vi) such other documents, records and other instruments as we may have been provided to us by Sheplers’ or their corporate counsel, Morgan, Lewis & Bockius LLP, in their discretion.

 
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile, pdf or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.  With respect to matters of fact relevant to our opinions as set forth below, we have relied upon certificates of officers of the Company and Sheplers, representations made by the Company or Sheplers in documents examined by us and representations of officers of the Company and Sheplers.  We have also assumed that (i) the Registration Statement and any amendments thereto will have become effective and comply with all applicable laws and no stop order suspending the Registration Statement’s effectiveness will have been issued and remain in effect, in each case, at the time any Securities  are offered and sold as contemplated by the Registration Statement, (ii) in connection with any offer and sale of Securities, a Prospectus Supplement will have been lawfully prepared and filed with the Commission in accordance with the rules and regulations of the Commission, and (iii) all Securities will be offered and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement.
 
Based upon the foregoing examination and in reliance thereon, and subject to (x) the assumptions, qualifications, exclusions and other limitations stated and in reliance on statements of fact contained in the documents that we have examined and (y) completion of all corporate action required to be taken by Sheplers to duly authorize each proposed issuance of the Shepler Guarantees, we are of the opinion that:
 
With respect to the Shepler Guarantees to be issued by Sheplers under the Indenture, when (a) the terms of such Shepler Guarantees and the applicable Debt Securities have been established in accordance with the Indenture, (b) the Indenture and the applicable supplement thereto, if any, has been duly authorized and validly executed and delivered by the Company, the  Guarantors, including specifically Sheplers, and the Trustee and (c) such Guarantees and the applicable Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Indenture and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Sheplers Guarantees of Sheplers will constitute legal, valid and binding obligations of Sheplers in accordance with its terms under the laws of the State of Kansas.
 
2 

 
Our opinions set forth above are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws relating to or affecting the rights and remedies of creditors generally, including the effect of statutory or other laws regarding fraudulent transfers or preferential transfers, (ii) the discretion of the court before which any proceeding may be brought, general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing, adequacy of consideration and the possible unavailability of specific performance, injunctive relief or other equitable remedies, regardless of whether enforceability is considered in a proceeding in equity or at law, and (iii) limitations on enforceability to the extent that acceleration of indebtedness under any Debt Security may impair collectability of that portion, if any, of the principal amount thereof that might be determined to be unearned interest thereon.  We express no opinion regarding the effectiveness of (x) any waiver of stay, extension or usury laws or of unknown future rights, or (y) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to federal or state securities laws.
 
We render the foregoing opinion as members of the bar of the State of Kansas and express no opinion as to laws other than the internal substantive laws of the State of Kansas. To the extent that the Indenture or any other document states that it is to be governed by the laws of a state other than Kansas (each contractual choice of law clause being referred to as a “Chosen Law Provision”).  No opinion is given herein as to any Chosen Law Provision, or otherwise as to the choice of law or internal substantive rules of law that any court or other tribunal may apply to the Shepler Guarantees.
 
We consent to the reliance upon our opinion by Morgan, Lewis & Bockius LLP solely for the purposes of their opinion filed as an exhibit to the Registration Statement and only to the extent that such opinion relates to the Shepler Guarantees.
 
Although the Shepler Guarantees of Sheplers may be issued from time to time on a delayed or continuous basis, the opinions expressed herein are limited to the laws, including rules and regulations, as in effect on the date hereof.
 
We hereby consent to the use of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus.  In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.

 	Respectfully,	
 	 	
 	/s/ Biggs Paul LLC	
 	Biggs Paul LLC	
 
cc:  Jim Watkins
 
3 

Exhibit 5.3

 

 	November 22, 2017	Patrick G. Goetzinger	
 	 	Email: patrick@gpna.com	
 	 	Direct Dial: (605) 719-3442	
 	 	Fax No.: (605) 342-9503	
 
Boot Barn Holdings, Inc.
15345 Barranca Parkway
Irvine, California 92618
 
Re:          Boot Barn Holdings, Inc.’s Registration Statement on Form S-3
 
Ladies and Gentlemen:
 
We have acted as special South Dakota counsel for Boot Barn Holdings, Inc., a Delaware corporation (the “ Company ”), and its subsidiary, RCC Western Stores, Inc. (the “South Dakota Subsidiary”), in connection with its filing of a Registration Statement on Form S-3 under the Securities Act of 1933, as amended (the “ Act ”), with the Securities and Exchange Commission (the “ Commission ”) on the date hereof (the “ Registration Statement ”).  The Registration Statement relates to the offer and sale by the Company pursuant to Rule 415 under the Act from time to time, in one or more offerings, as set forth in the prospectus contained in the Registration Statement (the “ Prospectus ”) and as shall be set forth in one or more supplements to the Prospectus (each, a “ Prospectus Supplement ”), of securities (the “ Securities ”), which may include any or all of the following: (i) shares of the Company’s common stock, par value $0.0001 per share (“ Common Stock ”); (ii) shares of one or more series of the Company’s preferred stock, par value $0.0001 per share (“ Preferred Stock ”); (iii) one or more series of the Company’s debt securities (the “ Debt Securities ”); (iv) guarantees (“ Guarantees ”) of the Debt Securities by subsidiaries of the Company, including the South Dakota Subsidiary (the “ Guarantors ”); (v) warrants to purchase shares of Common Stock, Preferred Stock, Debt Securities, Depository Shares (as defined below) or securities of third parties or other rights or any combination thereof (“ Warrants ”); and (vi) depository shares representing an interest in Preferred Stock (“ Depository Shares ”).  The Registration Statement also relates to the offer and sale of Common Stock by certain stockholders of the Company (the “ Selling Stockholders”).
 
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
 
In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of (i)  the organizational documents of South Dakota Subsidiary; (ii) the form of Indenture to be entered into by the Company and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), pursuant to which the Debt Securities and Guarantees are to be issued from time to time (the “ Indenture ”), and (iii) such other documents, records and other instruments as we have deemed appropriate for purposes of the opinions set forth herein.

 
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile, pdf or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.  With respect to matters of fact relevant to our opinions as set forth below, we have relied upon certificates of officers of the Company and the South Dakota Subsidiary, representations made by the Company and the South Dakota Subsidiary in documents examined by us and representations of officers of the Company and the South Dakota Subsidiary.  We have also obtained and relied upon such certificates and assurances from public officials as we have deemed necessary for the purposes of our opinions set forth below.
 
We have also assumed that (i) the Registration Statement and any amendments thereto will have become effective and comply with all applicable laws and no stop order suspending the Registration Statement’s effectiveness will have been issued and remain in effect, in each case, at the time any Securities  are offered and sold as contemplated by the Registration Statement, (ii) in connection with any offer and sale of Securities, a prospectus supplement will have been prepared and filed with the Commission in accordance with the rules and regulations of the Commission, and (iii) all Securities will be offered and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable prospectus supplement.
 
Based upon the foregoing examination and in reliance thereon, and subject to (x) the assumptions stated and in reliance on statements of fact contained in the documents that we have examined and (y) completion of all corporate action required to be taken by the South Dakota Subsidiary to duly authorize each proposed issuance of Guarantees, we are of the opinion that:
 
With respect to the Guarantees to be issued by the South Dakota Subsidiary under the Indenture, when (a) the terms of such Guarantees and the applicable Debt Securities have been established in accordance with the Indenture, (b) the Indenture and the applicable supplement thereto, if any, has been duly authorized and validly executed and delivered by the Company, the  Guarantors and the Trustee and (c) such Guarantees and the applicable Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Indenture and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Guarantees of the South Dakota Subsidiary will constitute legal, valid and binding obligations of the South Dakota Subsidiary under the laws of South Dakota.
 
2 

 
Our opinions set forth above are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws relating to or affecting the rights and remedies of creditors generally, including the effect of statutory or other laws regarding fraudulent transfers or preferential transfers, (ii) the discretion of the court before which any proceeding may be brought, general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies, regardless of whether enforceability is considered in a proceeding in equity or at law, and (iii) limitations on enforceability to the extent that acceleration of indebtedness under any Debt Security may impair collectability of that portion, if any, of the principal amount thereof that might be determined to be unearned interest thereon.  We express no opinion regarding the effectiveness of (x) any waiver of stay, extension or usury laws or of unknown future rights, or (y) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to federal or state securities laws.
 
We render the foregoing opinion as members of the bar of the State of South Dakota and express no opinion as to laws other than the laws of the State of South Dakota.
 
We consent to the reliance upon our opinion by Morgan, Lewis & Bockius LLP for the purposes of their opinion filed as an exhibit to the Registration Statement.
 
Although the Guarantees of South Dakota Subsidiary may be issued from time to time on a delayed or continuous basis, the opinions expressed herein are limited to the laws, including rules and regulations, as in effect on the date hereof.
 
We hereby consent to the use of this opinion as Exhibit 5.3 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus.  In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.

 	Sincerely,	
 	 	
 	/s/ Patrick G. Goetzinger	
 	Patrick G. Goetzinger	
 
PGG:sr
 
3 

EXHIBIT 23.1
 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated June 6, 2017, relating to the consolidated financial statements of Boot Barn Holdings, Inc. and subsidiaries (the “Company”), appearing in the Annual Report on Form 10-K of Boot Barn Holdings, Inc. for the year ended April 1, 2017, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.

/s/ Deloitte & Touche, LLP	 	
 	 	
Costa Mesa, California	 	
November 22, 2017	 	

Exhibit 25.1

 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

 
FORM T-1
 
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 
o CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
 
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)

A National Banking Association	 	94-1347393	
(Jurisdiction of incorporation of	 	(I.R.S. Employer	
organization if not a U.S. national	 	Identification No.)	
bank)	 	 	

101 North Phillips Avenue	 	 	
Sioux Falls, South Dakota	 	57104	
(Address of principal executive offices)	 	(Zip code)	
 
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17 th  Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)

 
BOOT BARN HOLDINGS, INC.
(Exact name of obligor as specified in its charter)

Delaware	 	90-0776290	
(State or other jurisdiction of	 	(I.R.S. Employer	
incorporation or organization)	 	Identification No.)	

15345 Barranca Parkway	 	 	
Irvine, California	 	92618	
(Address of principal executive offices)	 	(Zip code)	

 
Debt Securities
and Guarantees of Debt Securities
(Title of the indenture securities)

 

GUARANTORS

Exact Name of Obligor as
Specified in its Charter	 	State or Other Jurisdiction of
Incorporation or Organization	 	I.R.S. Employer
Identification Number	 	Address of Principal
Executive Offices	
 	 	 	 	 	 	 	
Baskins Acquisition Holdings, LLC	 	Delaware	 	27-0305335	 	15345 Barranca
Parkway
Irvine, California 92618	
Boot Barn, Inc.	 	Delaware	 	26-1081729	 	15345 Barranca
Parkway
Irvine, California 92618	
RCC Western Stores, Inc.	 	South Dakota	 	46-0402300	 	15345 Barranca
Parkway
Irvine, California 92618	
Sheplers Holding Corporation	 	Delaware	 	26-0406901	 	6501 West Kellogg
Drive
Wichita, Kansas 67209	
Sheplers, Inc.	 	Kansas	 	26-0604311	 	6501 West Kellogg
Drive
Wichita, Kansas 67209	

 
Item 1.          General Information.   Furnish the following information as to the trustee:
 
(a)                                  Name and address of each examining or supervising authority to which it is subject.
 
Comptroller of the Currency
Treasury Department
Washington, D.C.
 
Federal Deposit Insurance Corporation
Washington, D.C.
 
Federal Reserve Bank of San Francisco
San Francisco, California 94120
 
(b)                                  Whether it is authorized to exercise corporate trust powers.
 
The trustee is authorized to exercise corporate trust powers.
 
Item 2.          Affiliations with Obligor.   If the obligor is an affiliate of the trustee, describe each such affiliation.
 
None with respect to the trustee.
 
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.
 
Item 15.  Foreign Trustee.       Not applicable.
 
Item 16.  List of Exhibits.        List below all exhibits filed as a part of this Statement of Eligibility.
 
Exhibit 1.                                             A copy of the Articles of Association of the trustee as now in effect.*
 
Exhibit 2.                                             A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.*
 
Exhibit 3.                                             A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.*
 
Exhibit 4.                                             Copy of By-laws of the trustee as now in effect.*
 
Exhibit 5.                                             Not applicable.
 
Exhibit 6.                                             The consent of the trustee required by Section 321(b) of the Act.
 
Exhibit 7.                                             A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
 
Exhibit 8.                                             Not applicable.
 
Exhibit 9.                                             Not applicable.

*                  Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit to the Filing 305B2 dated March 13, 2015 of Navient Funding, LLC and Navient Credit Funding, LLC, file number 333-190926.

 
SIGNATURE
 
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles and State of California on the 21st day of November, 2017.

 	WELLS FARGO BANK, NATIONAL ASSOCIATION	
 	 	
 	/s/Maddy Hughes	
 	Maddy Hughes	
 	Vice President	

 
EXHIBIT 6
 
November 21, 2017
 
Securities and Exchange Commission
Washington, D.C.  20549
 
Gentlemen:
 
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 	Very truly yours,	
 	 	
 	WELLS FARGO BANK, NATIONAL ASSOCIATION	
 	 	
 	/s/ Maddy Hughes	
 	Maddy Hughes	
 	Vice President	

 
Exhibit 7
Consolidated Report of Condition of
 
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business September 30, 2017, filed in accordance with 12 U.S.C. §161 for National Banks.

 	 	Dollar Amounts	 	
 	 	In Millions	 	
ASSETS	 	 	 	
Cash and balances due from depository institutions:	 	 	 	
Noninterest-bearing balances and currency and coin	 	$	18,593	 	
Interest-bearing balances	 	205,447	 	
Securities:	 	 	 	
Held-to-maturity securities	 	142,316	 	
Available-for-sale securities	 	254,889	 	
Federal funds sold and securities purchased under agreements to resell:	 	 	 	
Federal funds sold in domestic offices	 	118	 	
Securities purchased under agreements to resell	 	30,628	 	
Loans and lease financing receivables:	 	 	 	
Loans and leases held for sale	 	7,834	 	
Loans and leases, net of unearned income	 	924,987	 	
LESS: Allowance for loan and lease losses	 	10,292	 	
Loans and leases, net of unearned income and allowance	 	914,695	 	
Trading Assets	 	45,303	 	
Premises and fixed assets (including capitalized leases)	 	7,810	 	
Other real estate owned	 	691	 	
Investments in unconsolidated subsidiaries and associated companies	 	11,686	 	
Direct and indirect investments in real estate ventures	 	339	 	
Intangible assets	 	 	 	
Goodwill	 	22,481	 	
Other intangible assets	 	16,825	 	
Other assets	 	58,325	 	
Total assets	 	$	1,737,980	 	
 	 	 	 	
LIABILITIES	 	 	 	
Deposits:	 	 	 	
In domestic offices	 	$	1,242,149	 	
Noninterest-bearing	 	425,384	 	
Interest-bearing	 	816,765	 	
In foreign offices, Edge and Agreement subsidiaries, and IBFs	 	118,326	 	
Noninterest-bearing	 	929	 	
Interest-bearing	 	117,397	 	
Federal funds purchased and securities sold under agreements to repurchase:	 	 	 	
Federal funds purchased in domestic offices	 	12,165	 	
Securities sold under agreements to repurchase	 	6,652	 	

 

 	 	Dollar Amounts	 	
 	 	In Millions	 	
 	 	 	 	
Trading liabilities	 	10,606	 	
Other borrowed money	 	 	 	
(includes mortgage indebtedness and obligations under capitalized leases)	 	131,262	 	
Subordinated notes and debentures	 	12,971	 	
Other liabilities	 	40,287	 	
Total liabilities	 	$	1,574,418	 	
EQUITY CAPITAL	 	 	 	
Perpetual preferred stock and related surplus	 	0	 	
Common stock	 	519	 	
Surplus (exclude all surplus related to preferred stock)	 	111,189	 	
Retained earnings	 	51,446	 	
Accumulated other comprehensive income	 	20	 	
Other equity capital components	 	0	 	
Total bank equity capital	 	163,174	 	
Noncontrolling (minority) interests in consolidated subsidiaries	 	388	 	
 	 	 	 	
Total equity capital	 	163,562	 	
 	 	 	 	
Total liabilities, and equity capital	 	$	1,737,980	 	
 
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.
 
John R. Shrewsberry
Sr. EVP & CFO
 
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

Directors	 	
Enrique Hernandez, Jr	 	
Federico F. Pena	 	
James Quigley