1
EXHIBIT 3.2
BY-LAWS
OF
AVCO ABS RECEIVABLES CORP.
(A Nevada corporation)
ARTICLE I
OFFICES
1. OFFICE.
The office of the corporation shall be located in the State of Nevada or such
other location as the Board of Directors may determine.
2. ADDITIONAL OFFICES.
The corporation may also have offices and places of business at such other
places, within or without the State of Nevada, as the Board of Directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
1. CERTIFICATES REPRESENTING SHARES.
Certificates representing shares shall set forth thereon the statements
prescribed by any applicable provision of law and shall be signed by the
Chairman of the Board of Directors, President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
and may be sealed with the corporate seal or a facsimile thereof. The signatures
of the 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 its employee. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
A certificate representing shares shall not be issued until the full amount of
consideration
2
therefor has been paid except as the Nevada Private Corporations Law may
otherwise permit.
No certificate representing shares shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the corporation,
if the Board of Directors shall so require, of a bond of indemnity in such
amount upon such terms and secured by such surety as the Board of Directors may
in its discretion require.
2. FRACTIONAL SHARE INTERESTS.
The corporation may issue certificates for fractions of a share where necessary
to effect transactions authorized by the Nevada Private Corporations Law which
shall entitle the holder in proportion to the holder's fractional holdings, to
exercise voting rights, receive dividends and participate in liquidating
distributions; or it may pay in cash the fair value of fractions of a share as
of the time when those entitled to receive such fractions are determined; or it
may issue scrip in registered or bearer form over the manual or facsimile
signature of an officer of the corporation or of its agent, exchangeable as
therein provided for full shares, but such scrip shall not entitle the holder to
any rights of a shareholder except as therein provided.
3. SHARE TRANSFERS.
Upon compliance with provisions restricting the transferability of shares, if
any, transfers of shares of the corporation shall be made only on the share
record of the corporation by the registered holder thereof, or by such holder's
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the corporation or with a transfer agent or a registrar, if
any, and on surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR SHAREHOLDERS.
For the purpose of determining the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or to express consent
to or dissent from any proposal without a meeting, or for the purpose of
determining shareholders entitled to receive payment of any dividend or the
allotment of any rights, or for the purpose of any other action, the directors
may fix, in advance, a date as the record date for any such determination of
shareholders. Such date shall not be more than fifty days nor less than ten days
before the date of such meeting, nor more than fifty days prior to any other
action. If no record date is fixed, the record date for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if no notice is given, the day on which the meeting is held; the
record date for determining shareholders for any other purpose shall be at the
close of business on the day on which the resolution of the directors relating
thereto is adopted. When a determination of shareholders of record entitled to
notice of or to vote at any meeting of shareholders has been made as provided in
this paragraph, such determination shall apply to any adjournment thereof,
unless the directors
-2-
3
fix a new record date under this paragraph for the adjourned meeting.
MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a
meeting of shareholders or a waiver thereof or to participate or vote thereat or
to consent or dissent in writing in lieu of a meeting, as the case may be, the
term "share" or "shares" or "shareholder" or "shareholders" refers to an
outstanding share or shares and to a holder or holders of record of outstanding
shares when the corporation is authorized to issue only one class of shares, and
said reference is also intended to include any outstanding share or shares and
any holder or holders of record of outstanding shares of any class upon which or
upon whom the Articles of Incorporation confers such rights where there are two
or more classes or series of shares or upon which or upon whom the Nevada
Private Corporations Law confers such rights notwithstanding that the Articles
of Incorporation may provide for more than one class or series of shares, one or
more of which are limited or denied such rights thereunder.
5. MEETINGS.
TIME. The annual meeting shall be held on the date fixed, from time to time, by
the directors; provided, however, that each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date fixed by the directors
except when the Nevada Private Corporations Law confers the right to fix the
date upon shareholders.
PLACE. Annual meetings and special meetings shall be held at such place, within
or without the State of Nevada, as the directors may, from time to time, fix.
Whenever the directors shall fail to fix such place, or, whenever shareholders
entitled to call a special meeting shall call the same, the meeting shall be
held at the office of the corporation in the State of Nevada.
CALL. Annual meetings may be called by the directors or by any officer
instructed by the directors to call the meeting or by the President. Special
meetings may be called in like manner except when the directors are required by
the Nevada Private Corporations Law to call a meeting, or except when the
shareholders are entitled by said Law to demand the call of a meeting.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. The notice of all meetings
shall be in writing, shall state the place, date, and hour of the meeting, and
shall state the name and capacity of the person issuing the same. The notice for
a special meeting shall indicate that it is being issued by or at the direction
of the person or persons calling the meeting. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or purposes. The notice of a
special meeting need not state the purpose or purposes for which the meeting is
called. If the directors shall adopt, amend, or repeal a By-Law regulating an
impending election of directors, the notice of the next meeting for election of
directors shall contain the statements prescribed by the Nevada Private
Corporations Law. If any action is proposed to be taken which would, if taken,
entitle shareholders to receive
-3-
4
payment for their shares, the notice shall include a statement of that purpose
and to that effect, together with a copy of the Nevada Private Corporations Law
or an outline of its terms. A copy of the notice of any meeting shall be given,
personally or by first class mail, not less than ten days nor more than fifty
days before the date of the meeting, unless the lapse of the prescribed period
of time shall have been waived, to each shareholder at such shareholder's record
address or at such other address which such shareholder may have furnished by
notice in writing to the Secretary of the corporation. If a meeting is adjourned
to another time or place, and if any announcement of the adjourned time or place
is made at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a new record date
for the adjourned meeting. Notice of a meeting need not be given to any
shareholder who submits a signed waiver of notice, in person or by proxy, before
or after the meeting. The attendance of a shareholder at a meeting, in person or
by proxy, without protesting prior to the conclusion of the meeting the lack of
notice of such meeting shall constitute a waiver of notice by such shareholder.
SHAREHOLDER LIST AND CHALLENGE. A list of shareholders as of the record date,
certified by the Secretary or other officer responsible for its preparation or
by the transfer agent, if any, shall be produced at any meeting of shareholders
upon the request thereat or prior thereto of any shareholder. If the right to
vote at any meeting is challenged, the inspectors of election, or person
presiding thereat, shall require such list of shareholders to be produced as
evidence of the right of the persons challenged to vote at such meeting, and all
persons who appear from such list to be shareholders entitled to vote thereat
may vote at such meeting.
CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by any
one of the following officers -- the Chairman of the Board, if any, the
President, a Vice President, or, if none of the foregoing is in office and
present, by a chairman to be chosen by the shareholders. The Secretary of the
corporation, or in such person's absence, an Assistant Secretary, shall act as
Secretary of the meeting, but if neither the Secretary nor Assistant Secretary
is present, the chairman of the meeting shall appoint a Secretary of the
meeting.
PROXY REPRESENTATION. Every shareholder may authorize another person or persons
to act for such shareholder by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the shareholder or such shareholder's
attorney-in-fact. No proxy shall be valid after the expiration of eleven months
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the shareholder executing it, except as
otherwise provided by the Nevada Private Corporations Law.
INSPECTORS OF ELECTION. The directors, in advance of any meeting, may appoint
one or more inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the person presiding at the meeting may, and,
on the request of any shareholder shall, appoint one or more inspectors. In case
any person appointed fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at the meeting
-4-
5
by the person presiding thereat. Each inspector, if any, before entering upon
the discharge of the duties of such office, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of such person's ability. The inspectors,
if any, shall determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the meeting
or any shareholder entitled to vote thereat, the inspector or inspectors, if
any, shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by the inspector
or inspectors.
QUORUM. Except for a special election of directors pursuant to the Nevada
Private Corporations Law, and except as herein otherwise provided, the holders
of a majority of the outstanding shares shall constitute a quorum at a meeting
of shareholders for the transaction of any business. When a quorum is once
present to organize a meeting, it is not broken by the subsequent withdrawal of
any shareholders. The shareholders present may adjourn the meeting despite the
absence of a quorum.
VOTING. Each share shall entitle the holder thereof to one vote. In the election
of directors, a plurality of the votes cast shall elect. Any other action shall
be authorized by a majority of the votes cast except where the Nevada Private
Corporations Law prescribes a different proportion of votes.
6. SHAREHOLDER ACTION WITHOUT MEETINGS.
Whenever shareholders are required or permitted to take any action by vote, such
action may be taken without a meeting, on written consent, setting forth the
action so taken, signed by the holders of all shares entitled to vote thereon.
ARTICLE III
BOARD OF DIRECTORS
1. FUNCTIONS AND DEFINITIONS.
The business of the corporation shall be managed by its Board of Directors. The
word "director" means any member of the Board of Directors. The use of the
phrase "entire Board" herein refers to the total number of directors which the
corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
Each director shall be at least eighteen years of age. A director need not be a
shareholder, a
-5-
6
citizen of the United States, or a resident of the State of Nevada.
The Board of Directors shall consist of three persons or such other number as
may be fixed from time to time by action of the directors or of the
shareholders; provided, however, that the number must be at least the lesser of
three (3) or the number of shareholders of the corporation. The number of
directors may be increased or decreased by action of directors or shareholders,
provided that any action of the directors to effect such increase or decrease
shall require the vote of a majority of the entire Board. No decrease shall
shorten the term of any incumbent directors.
3. ELECTION AND TERM.
Directors who are elected at an annual meeting of shareholders, and directors
who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of shareholders
and until their successors have been elected and qualified. In the interim
between annual meetings of shareholders or of special meetings of shareholders
called for the election of directors, newly created directorships and any
vacancies in the Board of Directors, including vacancies resulting from the
removal of directors for cause or without cause, may be filled by the vote of
the remaining directors then in office, although less than a quorum exists.
4. MEETINGS.
TIME. Meetings shall be held at such time as the Board shall fix, except that
the first meeting of a newly elected Board shall be held as soon after its
election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or without the State of
Nevada as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for which the time and
place have been fixed. Special meetings may be called by the President, a Vice
President, the Secretary, an Assistant Secretary or a majority of the directors
in office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular
meetings for which the time and place have been fixed. Notice of the time and
place of special meetings shall be given to each director orally or by mailing
prior to the meeting. The notice of any meeting need not specify the purpose of
the meeting. Any requirement of furnishing a notice shall be waived by any
director who signs a waiver of notice before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to him.
QUORUM AND ACTION. A majority of the entire Board shall constitute a quorum
except when a vacancy or vacancies prevents such majority, whereupon a majority
of the directors in office shall constitute a quorum, provided such majority
shall constitute at least one-third of the
-6-
7
entire Board. A majority of the directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as otherwise
provided herein or in any applicable provision of law, the vote of a majority of
the directors present at the time of the vote at a meeting of the Board, if a
quorum is present at such time, shall be the act of the Board.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present,
shall preside at all meetings. Otherwise, the President, if present, or any
other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause or without cause by the
shareholders. Any of the directors may be removed for cause by the Board of
Directors.
6. COMMITTEES OF DIRECTORS.
The Board of Directors may, by resolution passed by a majority of the entire
Board, designate from their number three or more directors to constitute an
Executive Committee which shall possess and may exercise all the powers and
authority of the Board of Directors in the management of the affairs of the
corporation between meetings of the Board (except to the extent prohibited by
applicable provisions of the Nevada Private Corporations Law) and/or designate
any number of directors to constitute such other committee or committees, which,
to the extent provided in the resolution, shall have and may exercise the powers
of the Board of Directors in the management of the business affairs of the
corporation and may authorize the seal of the corporation to be affixed to all
papers which may require it. 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. All such committees shall serve at the pleasure of the
Board. Each committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
7. CONFERENCE TELEPHONE.
Any one or more members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Such participation shall
constitute presence in person at such meeting.
8. ACTION IN WRITING.
-7-
8
Any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or the committee, as the case may be, consent in writing to the
adoption of a resolution authorizing the action, and the resolution and the
written consents thereto are filed with the minutes of the proceedings of the
Board or committee.
ARTICLE IV
OFFICERS
1. EXECUTIVE OFFICERS.
The directors may elect or appoint a Chairman of the Board of Directors, a
President, one or more Vice Presidents (one or more of whom may be denominated
"Executive Vice President", "Senior Vice President" or other variations
thereof), a Secretary, one or more Assistant Secretaries, a Treasurer, one or
more Assistant Treasurers, and such other officers as they may determine. Any
two or more offices may be held by the same person, except the offices of
President and Secretary; provided, however, that when all of the issued and
outstanding shares of the corporation are owned by one person, such person may
hold all or any combination of offices.
2. TERM OF OFFICE; REMOVAL.
Unless otherwise provided in the resolution of election or appointment, each
officer shall hold office until the meeting of the Board of Directors following
the next meeting of shareholders and until such officer's successor has been
elected and qualified. The Board of Directors may remove any officer for cause
or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the corporation, shall have such
authority and perform such duties in the management of the corporation as may be
provided in these By-Laws, or, to the extent not so provided, by the Board of
Directors.
4. THE PRESIDENT.
The President shall be the chief executive officer of the corporation. Subject
to the direction and control of the Board of Directors, such person shall be in
general charge of the business and affairs of the corporation.
5. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the absence or disability of
the President shall perform the duties and exercise the power of the President,
in the order of their seniority,
-8-
9
and shall perform such other duties as the Board of Directors shall prescribe.
6. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the corporation and affix
it to any instrument when authorized by the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors.
7. THE TREASURER.
The Treasurer shall have the care and custody of the corporate funds, and other
valuable effects, including securities, and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the corporation as may
be ordered by the Board, taking proper vouchers for such disbursements, and
shall render to the President and directors, at the regular meetings of the
Board, or whenever they may require it, an account of all transactions as
Treasurer and of the financial condition of the corporation. If required by the
Board of Directors, the Treasurer shall give the corporation a bond for such
term, in such sum and with such surety or sureties as shall be satisfactory to
the Board for the faithful performance of the duties of office and for the
restoration to the corporation, in case of death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in such person's possession or under such person's control
belonging to the corporation.
ARTICLE V
BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of account and
shall keep minutes of the proceedings of the shareholders, of the Board of
Directors, and any committee which the directors may appoint, and shall keep at
the office of the corporation in the State of Nevada or at the office of the
transfer agent or registrar, if any, in said state, a record containing the
names and addresses of all shareholders, the number and class of shares held by
each, and the date when they respectively became the owners of record thereof.
Any of the foregoing books, minutes, or records may be in written form or in any
other form capable of being converted into written form within a reasonable
time.
ARTICLE VI
CORPORATE SEAL
The corporate seal, if any, shall be in such form as the Board of Directors
shall prescribe.
-9-
10
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall be as fixed by the Board of Directors.
ARTICLE VIII
CONTROL OVER BY-LAWS
The shareholders entitled to vote in the election of directors or the directors
upon compliance with any statutory requisite may amend or repeal the By-Laws and
may adopt new By-Laws, except that the directors may not amend or repeal any
By-Law or adopt any new By-Law, the statutory control over which is vested
exclusively in the said shareholders or in the incorporators. By-Laws adopted by
the incorporators or directors may be amended or repealed by the said
shareholders.
ARTICLE IX
INDEMNIFICATION
1. The corporation shall indemnify any person made, or threatened to be made, a
party to an action or proceeding, whether civil or criminal or investigative (a
"proceeding"), including an action by or in the right of the corporation or any
other corporation of any type or kind, domestic or foreign, or any partnership,
joint venture, trust, employee benefit plan or other enterprise, which any
director or officer of the corporation served in any capacity at the request of
the corporation, by reason of the fact that such person, his or her testator or
intestate, was a director or officer of the corporation, or served such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in settlement
and reasonable expenses, including attorney's fees actually and necessarily
incurred as a result of such proceeding, or any appeal therein, if such director
or officer acted, in good faith, for a purpose which such person reasonably
believed to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation and, in criminal
proceedings, in addition, had no reasonable cause to believe that his or her
conduct was unlawful.
2. The termination of any such civil or criminal proceeding by judgment,
settlement, conviction or upon a plea of nolo contendere, or its equivalent,
shall not in itself create a presumption that any such director of officer did
not act, in good faith, for a purpose which such person reasonably believed to
be in, or, in the case of service for any other corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise, not opposed to,
the best interests of the corporation or that such person had reasonable cause
to believe that his or her conduct was unlawful.
-10-
11
3. For the purpose of this Article, the corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his or her duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person with respect to an
employee benefit plan pursuant to applicable law shall be considered fines; and
action taken or omitted by a person with respect to an employee benefit plan in
the performance of such person's duties for a purpose reasonably believed by
such person to be in the interest of the participants and beneficiaries of the
plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
4. The right to indemnification conferred in this Article shall be a contract
right and shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition;
provided, however, that, if the Nevada Private Corporations Law requires, the
payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer in advance of the final disposition of a
proceeding shall be made only upon receipt by the corporation of an undertaking,
by or on behalf of such director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified under this Article or otherwise.
5. Any determination as to whether a person has met an applicable standard of
conduct shall be made in accordance with the provisions of the Nevada Private
Corporations Law.
6. If a claim for indemnification under this Article is not paid in full by the
corporation within thirty days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
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 is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct prescribed hereunder, but the burden of proving
such defense shall be on the corporation. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
shareholders) 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 herein or
in the Nevada Private Corporations Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
shareholders) 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.
7. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article 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-Laws, agreement, vote of shareholders or disinterested directors or
otherwise. The corporation is authorized to provide for such additional
indemnification by (a) a
-11-
12
resolution of shareholders, (b) a resolution of directors, or (c) an agreement
providing for such indemnification.
8. Notwithstanding any provision hereof, no indemnification shall be made to or
on behalf of any person if a judgment or other final adjudication adverse to
such person establishes that his or her acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that such person personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled.
9. If any provision of this Article is determined to be unenforceable in whole
or in part, such provision shall nonetheless be enforced to the fullest extent
permissible, it being the intent of this Article to provide indemnification to
all persons eligible hereunder to the fullest extent permitted under law.
-12-