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EXHIBIT 3.2.2
ADVANTA LEASING RECEIVABLES CORP. V
Bylaws
ARTICLE I
Meetings of Stockholders
Section A. Annual Meetings. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business as
properly may come before such meeting shall be held each year on such date, and
at such time and place within or out of the State of Nevada, as may be
designated by the Board of Directors.
Section 1.2 Special Meetings. Special meetings of the stockholders
for any proper purpose or purposes may be called at any time by the Board of
Directors, the President, any Vice President, to be held on such date, and at
such time and place within or out of the State of Nevada, as the Board of
Directors, the President, any Vice President, whichever has called the meeting,
shall direct. A special meeting of the stockholders shall be called by the
President, any Vice President whenever stockholders owning a majority of the
shares of the Corporation then issued and outstanding and entitled to vote on
matters to be submitted to stockholders of the Corporation shall make
application therefor in writing. Any such written request shall state a proper
purpose or purposes of the meeting and shall be delivered to the President or
any Vice President.
Section 1.3 Notice of Meeting. Written notice, signed by the
President, any Vice President, the Secretary or any Assistant Secretary, of
every meeting of stockholders stating the date and time when, and the place
where, such meeting is to be held, shall be delivered either
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personally or by mail to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of such meeting, except
as otherwise provided by law. The purpose or purposes for which such meeting is
called may, in the case of an annual meeting, and shall in the case of a special
meeting, also be stated in such notice. If mailed, such notice shall be directed
to a stockholder at such Stockholder's address as it shall appear on the stock
books of the Corporation, unless such Stockholder shall have filed with the
Secretary a written request that notices intended for such Stockholder be mailed
to some other address, in which case it shall be mailed to the address
designated in such request. Whenever any notice is required to be given under
the provisions of the General Corporation Law of the State of Nevada, the
Articles of Incorporation or these Bylaws, a waiver thereof, signed by the
stockholder entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Attendance of a stockholder at the
meeting shall not be deemed equivalent to a written waiver of notice of such
meeting; a written waiver is required.
Section 1.4 Quorum. The presence at any meeting of stockholders, in
person or by proxy, of the holders of record of a majority of the shares then
issued and outstanding and entitled to vote shall be necessary and sufficient to
constitute a quorum for the transaction of business.
Section 1.5 Adjournments. In the absence of a quorum, a majority in
interest of the stockholders entitled to vote, present in person or by proxy,
or, if no stockholder entitled to vote is present in person or by proxy, any
officer entitled to preside at or act as secretary of a meeting of stockholders,
may adjourn such meeting from time to time until a quorum shall be present.
Section 1.6 Voting. Directors shall be chosen by a plurality of the
votes cast at the election, and, except as otherwise provided by law or by the
Articles of Incorporation, including
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provisions regarding Independent Directors, all other questions shall be
determined by a majority of the votes cast on such question.
Section 1.7 Proxies. Any stockholder entitled to vote may vote by
proxy, provided that the instrument authorizing such proxy to act shall have
been executed in writing (which shall include telegraphing or cabling) by the
stockholder himself or by such Stockholder's duly authorized attorney and
delivered to the Secretary.
Section 1.8 Judges of Election. The Board of Directors may appoint
judges of election to serve at any election of directors and at balloting on any
other matter that may properly come before a meeting of stockholders. If no such
appointment shall be made, or if any of the judges so appointed shall fail to
attend, or refuse or be unable to serve, then such appointment may be made by
the presiding officer at the meeting.
ARTICLE II
Board of Directors
Section 2.1 Number. The number of directors which shall constitute
the whole Board of Directors shall be fixed from time to time by resolution of
the Board of Directors or stockholders (any such resolution of either the Board
of Directors or stockholders being subject to any later resolution of either of
them). The first Board of Directors and subsequent Boards of Directors shall
consist of five directors, including two Independent Directors, until changed as
herein provided and subject to the provisions of the Articles of Incorporation
regarding Independent Directors.
Section 2.2 Election and Term of Office. Directors shall be elected
at the annual meeting of the stockholders, except as provided in Section 2.3 and
subject to the provisions of the Articles of Incorporation regarding Independent
Directors. Each director (whether elected at an
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annual meeting or to fill a vacancy or otherwise) shall continue in office until
such Director's successor shall have been elected and qualified or until such
Director's earlier death, resignation or removal in the manner hereinafter
provided.
Section 2.3 Vacancies and Additional Directorships. If any vacancy
shall occur among the directors by reason of death, resignation or removal, or
as the result of an increase in the number of directorships, a majority of the
directors then in office, or the remaining directors, or sole remaining
director, though less than a quorum, may fill any such vacancy subject to the
provisions of the Articles of Incorporation regarding Independent Directors.
Section 2.4 Regular Meetings. A regular meeting of the Board of
Directors shall be held for organization, for the election of officers and for
the transaction of such other business as may properly come before such meeting,
within thirty days after each annual meeting of stockholders. The Board of
Directors by resolution may provide for the holding of other regular meetings
and may fix the times and places at which such meetings shall be held. Notice of
regular meetings shall not be required to be given, provided that whenever the
time or place of regular meetings shall be fixed or changed, notice of such
action shall be mailed promptly to each director who shall not have been present
at the meeting at which such action was taken, addressed to such Director at
such Director's residence or usual place of business.
Section 2.5 Special Meetings. Special meetings of the Board of
Directors shall be held upon call by or at the direction of the President, any
Vice President or any two directors, except that when the Board of Directors
consists of one director, then the one director may call a special meeting.
Except as otherwise required by law, notice of each special meeting shall be
mailed to each director, addressed to such Director at such Director's residence
or usual place of business, at least two days before the day on which the
meeting is to be held, or shall be sent to
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such Director at such place by telex, facsimile transmission, telegram, radio or
cable, or telephoned or delivered to him personally, not later than the day
before the day on which the meeting is to be held. Such notice shall state the
time and place of such meeting, but need not state the purposes thereof, unless
otherwise required by law, the Articles of Incorporation or these Bylaws.
Section 2.6 Waiver of Notice. Whenever any notice is required to be
given under the provisions of the General Corporation Law of the State of
Nevada, the Articles of Incorporation or these Bylaws, a waiver thereof, signed
by the director entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Attendance of a director at a
meeting shall not be deemed equivalent to a written waiver of notice of such
meeting; a written waiver is required.
Section 2.7 Quorum and Manner of Acting. At each meeting of the
Board of Directors the presence of a majority of the total number of members of
the Board of Directors as constituted from time to time, shall be necessary and
sufficient to constitute a quorum for the transaction of business, except that
when the Board of Directors consists of one director, then the one director
shall constitute a quorum, provided that such director must be an Independent
Director. Meetings may be held by telephone. In the absence of a quorum, a
majority of those present at the time and place of any meeting may adjourn the
meeting from time to time until a quorum shall be present and the meeting may be
held as so adjourned without further notice or waiver. A majority of those
present at any meeting at which a quorum is present may decide any question
brought before such meeting, except as otherwise provided by law, the Articles
of Incorporation, including the provisions regarding Independent Directors, or
these Bylaws. The Board of Directors may also act without a meeting so long as
such action is taken with the unanimous written consent of the Board of
Directors.
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Section 2.8 Resignation of Directors. Any director may resign at any
time by giving written notice of such resignation to the Board of Directors, the
President, any Vice President or the Secretary, subject to the provisions of the
Articles of Incorporation regarding Independent Directors. Unless otherwise
specified in such notice, such resignation shall take effect upon receipt
thereof by the Board of Directors or any such officer, and the acceptance of
such resignation shall not be necessary to make it effective.
Section 2.9 Removal of Directors. At any special meeting of the
stockholders, duly called as provided in these Bylaws, any director or directors
may be removed from office, either with or without cause, by a two-third
majority vote of the shareholders. At such meeting a successor or successors may
be elected by a plurality of the votes cast, or if any such vacancy is not so
filled, it may be filled by the Board of Directors as provided in Section 2.3,
subject to the provisions of the Articles of Incorporation regarding Independent
Directors.
Section 2.10 Compensation of Directors. Directors shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 2.11 General Powers. The Board of Directors shall have all
powers necessary or appropriate to the management of the business and affairs of
the Corporation, and, in addition to the power and authority conferred by these
Bylaws, may exercise all powers of the Corporation and do all such lawful acts
and things as are not by statute, these Bylaws or the Articles of Incorporation
directed or required to be exercised or done by the stockholders.
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Notwithstanding anything in these Bylaws to the contrary, except to
the extent prohibited by law, the Board of Directors shall have the right
(which, to the extent exercised, shall be exclusive) to establish the rights,
powers, duties, rules and procedures that from time to time shall govern the
Board of Directors and each of its members, including without limitation, the
vote required for any action by the Board of Directors, and that from time to
time shall affect the Directors' power to manage the business and affairs of the
Company; and no Bylaw shall be adopted by stockholders which shall impair or
impede the implementation of the foregoing, and provided further, that no right,
duty, rule or procedure established by the Board of Directors, and no Bylaw
adopted by the stockholders shall have the effect of amending, altering or
changing Article TENTH of the Articles of Incorporation.
Section 2.12 Specific Powers. Without limiting the general powers
conferred by the last preceding clause and the powers conferred by the Articles
of Incorporation and Bylaws of the Corporation, but subject to the limitations
set forth in Section 2.13, it is hereby expressly declared that the Board of
Directors shall have the following powers to engage in the following activities:
A. to acquire from time to time all right, title and interest in and
to (i) receivables including but not limited to, lease contracts,
commercial loans or leases, loans to franchise operations, accounts
receivables, credit card receivables, insurance policy loans or premiums,
or installment sale or lease contracts or promissory notes, arising out of
or relating to, the purchase or lease of equipment, monies due thereunder,
equipment financed thereby or security interests therein, proceeds from
claims on insurance policies related thereto, or (ii) any participation
interest (including, without limitation, interest only strips)
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in or security based on or backed by any of the foregoing and related
rights and other property appurtenant thereto (items in (a)(i) and
(a)(ii)), collectively, the "Assets");
B. to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Assets, collateral securing or otherwise relating
to the Assets, related insurance policies, agreements with vendors or
lessors or other originators or servicers of Assets and any proceeds or
further rights associated with any of the foregoing;
C. to transfer from time to time Assets to trusts (the "Trusts")
pursuant to one or more pooling and servicing agreements,
indentures,master facility agreements or other agreements ("Securitization
Agreements"), to be entered into by, among others, the Corporation, the
trustee named therein (the "Trustee"), and any entity acting as servicer
of the Assets;
D. to transfer from time to time Assets pursuant to one or more
receivables transfer agreements or other agreements ("Receivables Transfer
Agreements"), to be entered into by, among other things, the Corporation,
any entity acting as placement agent, the transferor of the Assets, and
any entity acting as servicer of the Assets;
E. to authorize, and cause the issuance of one or more series of
certificates or other securities issued pursuant to Securitization
Agreements or Receivables Transfer Agreements;
F. to authorize, issue, sell and deliver one or more series and
classes of bonds, notes or other evidences of indebtedness secured or
collateralized by one or more pools of Assets issued under a
Securitization Agreement or by certificates of any class issued by any
Trust established by the Corporation (collectively, the "Asset-Backed
Securities"), provided that the Corporation shall have absolutely no
liability under any Asset-Backed Securities
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except to the extent of the Assets or the certificates securing or
collateralizing such Asset-Backed Securities;
G. to acquire from the Trustee certificates or other subordinate
Asset-Backed Securities issued by Trusts to which the Corporation
transferred Assets;
H. to hold and enjoy all of the rights and privileges of any
certificates or other subordinate Asset-Backed Securities issued to the
Corporation under the related agreements;
I. to purchase Assets from and sell Assets to any Related Company or
any third party as defined in Article EIGHTH of the Articles of
Incorporation in connection with Securitization Agreements or Receivables
Transfer Agreements;
J. to perform its obligations under each Securitization Agreement,
Receivables Transfer Agreement, Interim Agreement (as defined below) or
other agreement entered into by the Corporation;
K. to invest proceeds from any Assets, and any other income as
determined by the Board of Directors, including investing in other Assets;
L. to enter from time to time into interim arrangements relating to
the Assets whereby assets are transferred to a custodian on behalf of the
entity providing financing, pursuant to one or more repurchase agreements
or other agreements (each, an "Interim Agreement") to be entered into by,
among others, the Corporation, the entity providing financing, the
custodian named therein and any entity acting as servicer of the Assets;
provided, however, that the Corporation shall have no liability under any
Interim Agreement except to the extent of the Assets funded thereby; and
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M. to engage in any acts and activities and exercise any powers
permitted to corporations under the laws of the State of Delaware which
are incidental to, or connected with, the foregoing, and necessary,
suitable or convenient to accomplish any of the foregoing.
Section 2.13 Forbidden Actions. So long as the Corporation owns (i)
any Assets pursuant to any agreement or (ii) is liable for any obligations under
any such or a related agreement, notwithstanding any other provision of the
Articles of Incorporation and any provision of law which otherwise so empowers
the Corporation, the Corporation shall not perform any act in contravention of
any of the following:
The Corporation shall not
(a)(i) consolidate or merge with or into any other entity or
convey, transfer or assign any residual or subordinate interest to any Related
Company, or dissolve or transfer its properties and assets substantially as an
entirety to any entity (other than to a trust formed pursuant to a Pooling and
Servicing Agreement or similar agreement and only to the extent that the trust
is deemed to be a subsidiary of the Corporation), or lend or advance any moneys
to, or make an investment in, any person or amend or repeal these bylaws or its
Articles of Incorporation or (ii) engage in any other action that bears on
whether the separate legal identity of the Corporation and Advanta Business
Services will be respected including, without limitation (a) holding itself out
as being liable for the debts of any other part; (b) forming, or causing to be
formed, any subsidiaries; (c) acting other than in its corporate name and
through its duly authorized officers or agents; (d) failing to hold appropriate
meetings of the Board of Directors at least three times per annum and otherwise
as necessary to authorize all corporate action; (e) failing to hold meetings of
the stockholders at least one time per annum;
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(a) incur any indebtedness, or assume or guaranty any indebtedness
of any other entity, in either such case which involves a pledge of the
Corporation's general corporate credit; the Corporation may only incur
indebtedness in the form of the non-recourse Asset-Backed Securities authorized
pursuant to Article SIXTH of the Articles of Incorporation. .
(b) consolidate or merge with or into any other entity or convey or
transfer its properties and assets substantially as an entirety to any entity,
unless
(i) the entity (if other than the Corporation) formed or surviving
the consolidation or merger or which acquires the properties and assets of
the Corporation is organized and existing under the laws of the State of
Nevada, expressly assumes the due and punctual payment of all obligations
of the Corporation, including those obligations of the Corporation under
each Securitization Agreement and each Receivables Transfer Agreement; and
(ii) immediately after giving effect to the transaction, no default
or event of default has occurred and is continuing under any
Securitization Agreement or any Receivables Transfer Agreement;
(d) without the affirmative vote of 100% of the members of the Board
of Directors of the Corporation (including an affirmative vote of each
Independent Director, as set forth in Article FOURTH of the Articles of
Incorporation), and the affirmative vote of the holders of 100% of the common
stock outstanding of the Corporation make an assignment for the benefit of
creditors, file a petition in bankruptcy, petition or apply to any tribunal for
the appointment of a custodian, receiver, or any trustee for it or for a
substantial part of its property, commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereinafter in effect,
consent or
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acquiesce to the entry of an order for relief, or in the filing of any such
petition, application, proceeding or appointment of or taking possession by the
custodian, receiver, liquidator, assignee, trustee, sequestrator, (or other
similar official) of the Corporation or any substantial part of its property, or
admit its inability to pay its debts generally as they become due or authorize
any of the foregoing to be done or taken on behalf of the Corporation; provided
that if there shall not be two directors required by Article FOURTH (b) of the
Articles of Incorporation then in office and acting, a vote upon any matter set
forth in this Section 2.13(d) shall not be taken unless and until two directors
meeting the requirements of Article FOURTH of the Articles of Incorporation
shall have been elected and shall be present and acting at such vote;
(e) commingle the Corporation's assets with those of any Related
Company;
(f) fail to maintain separate corporate records and books of account
from those of any Related Company;
(g) fail to conduct its business from an office separate from any
Related Company;
(h) fail to maintain its assets separately from the accounts of any
other person (including through maintenance of a separate bank account); and
(i) fail to pay from its assets Asset-Backed Securities issued by
it, nor pay from its assets any obligations or indebtedness of any other entity
or person.
For purpose of this Section 2.13, "Related Company" means the
stockholder or stockholders of this Corporation or any entity other than this
Corporation now or hereafter controlled directly or indirectly by, or under
direct or indirect common control with, the stockholders of this Corporation.
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ARTICLE III
Committees of the Board
Section 3.1 Designation, Power, Alternate Members and Term of
Office. The Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, designate one or more committees, including but not
limited to an Executive Committee, each committee to consist of one or more of
the directors of the Corporation. Any such committee, to the extent provided in
such resolution and permitted by law, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation or a
facsimile thereof to be affixed to or reproduced on all such papers as said
committee shall designate; but no such committee shall have power or authority
in reference to amending the Articles of Incorporation, adopting an agreement of
merger of consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, amending the Bylaws of the Corporation, declaring a
dividend or authorizing the issuance of stock. The Board of Directors may
designate one or more directors as alternate members of any committee who, in
the order specified by the Board of Directors, may replace any absent or
disqualified member at any meeting of such committee. If at a meeting of any
committee one or more of the members thereof should be absent or disqualified,
and if either the Board of Directors has not so designated any alternate member
or members, or the number of absent or disqualified members exceeds the number
of alternate members who are present at such meeting, then the member or members
of such committee (including alternates) present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another director to act at such meeting in the
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place of any such absent or disqualified member. The term of office of the
members of each committee shall be as fixed from time to time by the Board of
Directors, subject to these Bylaws; provided, however, that any committee member
who ceases to be a member of the Board of Directors shall ipso facto cease to be
a committee member. Each committee shall appoint a secretary, who may be a
Director or an officer of the Corporation.
Section 3.2 Meetings, Notices and Records. Each committee may
provide for the holding of regular meetings, with or without notice, and may fix
the times and places at which such meetings shall be held. Special meetings of
each committee shall be held upon call by or at the direction of its chairman
or, if there be no chairman, by or at the direction of any one of its members.
Except as otherwise provided by law, notice of each special meeting of a
committee shall be mailed to each member of such committee, addressed to such
member at such member's residence or usual place of business, at least two days
before the day on which the meeting is to be held, or shall be sent to him at
such place by telex, facsimile transmission, telegram, radio or cable, or
telephoned or delivered to such member personally, not later than the day before
the day on which the meeting is to be held. Such notice shall state the time and
place of such meeting, but need not state the purposes thereof, unless otherwise
required by law, the Articles of Incorporation of the Corporation or these
Bylaws.
Notice of any meeting of a committee need not be given to any member
thereof who shall attend such meeting in person or who shall waive notice
thereof, before or after such meeting, in a signed writing. Each committee shall
keep a record of its proceedings.
Section 3.3 Quorum and Manner of Acting. At each meeting of any
committee the presence of a majority of its members then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
except that when a committee consists of one
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member, then the one member shall constitute a quorum. In the absence of a
quorum, a majority of the members present at the time and place of any meeting
may adjourn the meeting from time to time until a quorum shall be present and
the meeting may be held as so adjourned without further notice or waiver. The
act of a majority of the members present at any meeting at which a quorum is
present shall be the act of such committee. Subject to the foregoing and other
provisions of these Bylaws and except as otherwise determined by the Board of
Directors, each committee may make rules for the conduct of its business.
Section 3.4 Resignations. Any member of a committee may resign at
any time by giving written notice of such resignation to the Board of Directors,
the President, any Vice President or the Secretary. Unless otherwise specified
in such notice, such resignation shall take effect upon receipt thereof by the
Board of Directors or any such officer, and the acceptance of such resignation
shall not be necessary to make it effective.
Section 3.5 Removal. Any member of any committee may be removed
at any time with or without cause by the Board of Directors.
Section 3.6 Vacancies. If any vacancy shall occur in any committee
by reason of death, resignation, disqualification, removal or otherwise, the
remaining member or members of such committee, so long as a quorum is present,
may continue to act until such vacancy is filled by the Board of Directors.
Section 3.7 Compensation. Committee members shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from serving the Corporation
in any other capacity and receiving compensation therefor.
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ARTICLE IV
Officers
Section 4.1 Officers. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary, a Treasurer, and such other
officers as may be appointed in accordance with the provisions of Section 4.3.
Section 4.2 Election, Term of Office and Qualifications. Each
officer (except such officers as may be appointed in accordance with the
provisions of Section 4.3) shall be elected by the Board of Directors. Each such
officer shall hold such office until such officer's successor shall have been
elected and shall qualify, or until such officer's death, or until such officer
shall have resigned in the manner provided in Section 4.4 or shall have been
removed in the manner provided in Section 4.5.
Section 4.3 Subordinate Officers and Agents. The Board of Directors
from time to time may appoint other officers or agents (including one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers), to hold office for such periods, have such authority and
perform such duties as are provided in these Bylaws or as may be provided in the
resolutions appointing them. The Board of Directors may delegate to any officer
or agent the power to appoint any such subordinate officers or agents and to
prescribe their respective terms of office, authorities and duties.
Section 4.4 Resignations. Any officer may resign at any time by
giving written notice of such resignation to the Board of Directors, the
President, any Vice President or the Secretary. Unless otherwise specified in
such written notice, such resignation shall take effect upon receipt thereof by
the Board of Directors or any such officer, and the acceptance of such
resignation shall not be necessary to make it effective.
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Section 4.5 Removal. Any officer specifically designated in Section
4.1 may be removed with or without cause at any meeting of the Board of
Directors by affirmative vote of a majority of the directors then in office. Any
officer or agent appointed in accordance with the provisions of Section 4.3 may
be removed with or without cause at any meeting of the Board of Directors by
affirmative vote of a majority of the directors present at such meeting, or at
any time by any superior officer or agent upon whom such power of removal shall
have been conferred by the Board of Directors.
Section 4.6 Vacancies. A vacancy in any office by reason of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed by these Bylaws for
regular election or appointment to such office.
Section 4.7 The President. The President shall be the chief
executive officer of the Corporation, subject to the direction of the Board of
Directors, shall have general charge of the business, affairs and property of
the Corporation and general supervision over its officers and agents. If
present, the President shall preside at all meetings of stockholders and the
President shall see that all orders and resolutions of the Board of Directors
are carried into effect. The President may sign, with any other officer
thereunto duly authorized, certificates representing stock of the Corporation
the issuance of which shall have been duly authorized (the signature to which
may be a facsimile signature), and may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts, agreements or other instruments
duly authorized by the Board of Directors, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent or shall be required by law to be otherwise executed.
From time to time President shall report to the Board of Directors all matters
within the President's knowledge which the interests of the Corporation may
require to be brought to their attention. The
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President shall have such other powers and perform such other duties as may from
time to time be prescribed by the Board of Directors or these Bylaws. If no
Treasurer shall have been appointed by the Board of Directors the President
shall have, in addition to and not in limitation of the foregoing, the powers
afforded the Treasurer pursuant to Section 4.10 hereof.
Section 4.8 The Vice Presidents. At the request of the President or
in the absence or disability of the President, the Vice President designated by
the Board of Directors shall perform all the duties of the President and, when
so acting, shall have all the powers of and be subject to all restrictions upon
the President. Any Vice President may also sign, with any other officer
thereunto duly authorized, certificates representing stock of the Corporation
the issuance of which shall have been duly authorized (the signature to which
may be a facsimile signature), and may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts, agreements or other instruments
duly authorized by the Board of Directors, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent or shall be required by law to be otherwise executed.
Each Vice President shall have such other powers and perform such other duties
as may from time to time be prescribed by the Board of Directors, the President
or these Bylaws.
Section 4.9 The Secretary. The Secretary shall:
(a) record all the proceedings of the meetings of the stockholders,
the Board of Directors, and any committees of the Board of Directors in a
book or books to be kept for that purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these Bylaws and as required by law;
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(c) whenever any committee shall be appointed in pursuance of a
resolution of the Board of Directors, furnish the chairman of such
committee with a copy of such resolution;
(d) be custodian of the records and of the seal of the Corporation,
and cause such seal to be affixed to or a facsimile to be reproduced on
all certificates representing stock of the Corporation prior to the
issuance thereof and to all instruments the execution of which on behalf
of the Corporation under its seal shall have been duly authorized;
(e) see that its lists, books, reports, statements, certificates and
other documents and records required by law are properly kept and filed;
(f) have charge of the stock and transfer books of the Corporation,
and exhibit such stock book at all reasonable times to such persons as are
entitled by law to have access thereto;
(g) sign certificates representing stock of the Corporation the
issuance of which shall have been duly authorized (the signature to which
may be a facsimile signature); and
(h) in general, perform all duties incident to the office of
Secretary and have such other powers and perform such other duties as may
from time to time be prescribed by the Board of Directors, the President
or these Bylaws.
Section 4.10 The Treasurer. The Treasurer shall be the chief
financial officer of the Corporation and shall:
(a) have charge of and supervision over and be responsible for the
funds, securities, receipts and disbursements of the Corporation;
(b) cause the moneys and other valuable effects of the Corporation
to be deposited in the name and to the credit of the Corporation in such
banks or trust companies
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or with such bankers or other depositaries as shall be selected in
accordance with Section 5.3 or to be otherwise dealt with in such manner
as the Board of Directors may direct;
(c) cause the funds of the Corporation to be disbursed by checks or
drafts upon the authorized depositaries of the Corporation, and cause to
be taken and preserved proper vouchers for all moneys disbursed;
(d) render to the Board of Directors or the President, whenever
requested, a statement of the financial condition of the Corporation and
of all his transactions as Treasurer;
(e) cause to be kept at the Corporation's principal office correct
books of account of all its business and transactions and such duplicate
books of account as the Treasurer shall determine and upon application
cause such books or duplicates thereof to be exhibited to any director;
(f) be empowered, from time to time, to require from the officers or
agents of the Corporation reports or statements giving such information as
the Treasurer may desire with respect to any and all financial
transactions of the Corporation;
(g) sign certificates representing stock of the Corporation the
issuance of which shall have been duly authorized (the signature to which
may be a facsimile signature); and
(h) in general, perform all duties incident to the office of
Treasurer and have such other powers and perform such other duties as may
from time to time be prescribed by the Board of Directors, the President
or these Bylaws.
Section 4.11 Salaries. The salaries of the officers of the
Corporation shall be fixed from time to time by the Board of Directors, except
that the Board of Directors may delegate to any person the power to fix the
salaries or other compensation of any officers or agents appointed
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in accordance with the provisions of Section 4.3. No officer shall be prevented
from receiving such salary by reason of the fact that such officer is also a
director of the Corporation.
ARTICLE V
Execution of Instruments and
Deposit of Corporate Funds
Section 5.1 Execution of Instruments Generally. Subject to the
restrictions set forth in Sections 2.12 and 2.13 hereof, which such Sections
shall control, the President, any Vice President or the Secretary or the Chief
Financial Officer, subject to the approval of the Board of Directors, may enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Subject to the restrictions set forth in Sections
2.12 and 2.13 hereof, which such Sections shall control, the Board of Directors
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authorization may be general or confined to specific
instances.
Section 5.2 Borrowing. Subject to the restrictions set forth in
Sections 2.12 and 2.13 hereof, which such Sections shall control, no loans or
advance shall be obtained or contracted for, by or on behalf of the Corporation
and no negotiable paper shall be issued in its name, unless and except as
authorized by the Board of Directors. Such authorization may be general or
confined to specific instances. Subject to the restrictions set forth in
Sections 2.12 and 2.13 hereof, which such Sections shall control, any officer or
agent of the Corporation thereunto so authorized may obtain loans and advances
for the Corporation, and for such loans and advances may make, execute and
deliver promissory notes, bonds, or other evidences of indebtedness of the
Corporation. Subject to the restrictions set forth in Sections 2.12 and 2.13
hereof, which such Sections shall control, any officer or agent of the
Corporation thereunto so authorized may pledge, hypothecate or transfer as
security for the payment of any and all loans, advances, indebtedness and
liabilities of
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the Corporation, any and all stocks, bonds, other securities and other personal
property at any time held by the Corporation, and to that end may endorse,
assign and deliver the same and do every act and thing necessary or proper in
connection therewith.
Section 5.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositaries as the Board of
Directors may select, or as may be selected by any officer or officers or agent
or agents authorized so to do by the Board of Directors. Endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositaries shall be made in such manner as the Board of Directors from time to
time may determine.
Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, and all notes or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer or
officers or agent or agents of the Corporation, and in such manner, as from time
to time shall be determined by the Board of Directors.
Section 5.5 Proxies. Proxies to vote with respect to shares of stock
of other Corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
President or any Vice President or by any other person or persons thereunto
authorized by the Board of Directors.
ARTICLE VI
Record Dates
Section 6.1 Record Dates. 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
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rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall be not more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Only those stockholders of record on the date so fixed shall be entitled to any
of the foregoing rights, notwithstanding the transfer of any such stock on the
books of the Corporation after any such record date fixed by the Board of
Directors.
ARTICLE VII
Corporate Seal
Section 7.1 Corporate Seal. The corporate seal shall be circular in
form and shall bear the name of the Corporation and words and figures denoting
its organization under the laws of the State of Nevada and the year thereof and
otherwise shall be in such form as shall be approved from time to time by the
Board of Directors.
ARTICLE VIII
Fiscal Year
Section 8.1 Fiscal Year. The fiscal year of the Corporation
shall be as designated by the Board of Directors.
ARTICLE IX
Amendments
Section 9.1 Amendments. All Bylaws of the Corporation may be amended
or repealed, and new Bylaws may be made, by an affirmative majority of the votes
cast at any annual or special stockholders' meeting by holders of outstanding
shares of stock of the Corporation entitled to vote, or by an affirmative vote
of a majority of the directors present at any organizational, regular, or
special meeting of the Board of Directors.
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ARTICLE X
Action Without A Meeting
Section 10.1 Action Without A Meeting. Any action which might have
been taken under these Bylaws by a vote of the stockholders at a meeting thereof
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 individually
signed and dated by the holders of outstanding shares of stock of the
Corporation 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, provided that no written
consent will be effective unless the necessary number of written consents is
delivered to the Corporation within sixty days of the earliest delivered consent
to the Corporation, and provided further that prompt notice shall be given to
those stockholders who have not so consented if less than unanimous written
consent is obtained. Any action which might have been taken under these Bylaws
by vote of the directors at any meeting of the Board of Director or any
committee thereof may be taken without a meeting if all the members of the Board
of Directors or such committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of the Board of Directors
or such committee.
ARTICLE XI
Indemnification
Section 11.1 Indemnification. The Corporation shall indemnify, in
the manner and to the full extent permitted by law, any person (or the estate of
any person) who was or is a party to, or is threatened to be made a party to,
any threatened, pending or completed action, suit or proceeding, whether or not
by or in the right of the Corporation, and whether civil, criminal,
administrative, investigative or otherwise, by reason of the fact that such
person is or was a director,
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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 or another
Corporation, partnership, joint venture, trust or other enterprise. Where
required by law, the indemnification provided for herein shall be made only as
authorized in the specific case upon a determination, in the manner provided by
law, that indemnification of the director, officer, employee or agent is proper
in the circumstances. The Corporation may, to the full extent permitted by law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against such person. To the full extent
permitted by law, the indemnification provided herein shall include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
and, in the manner provided by law, any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed to limit the
right of the Corporation to indemnify any other person for any such expenses to
the full extent permitted by law, nor shall it be deemed exclusive of any other
rights to which any person seeking indemnification from the Corporation may be
entitled under any 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. Such indemnification shall 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
person.
Section 11.2 No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for acts or omissions
which involve intentional misconduct, fraud, or a knowing violation of law, or
(ii) for the payment of distributions in violation of the Section 78.300 of the
Nevada Revised Statutes. Any repeal or modification of this Section 11.2 by the
stockholders of the
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Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification with respect
to acts or omissions occurring prior to such repeal or modification.
ARTICLE XII
Offices
Section 12.1 Resident Office and Resident. The Corporation shall
maintain a resident office and resident within the State of Nevada, which may be
changed by the Board of Directors from time to time.
Section 12.2 Other Offices. The Corporation may also have offices at
such other place, within or without the State of Nevada, as the Board of
Directors may from time to time determine.
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February __, 1998
VIA ELECTRONIC TRANSMISSION
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Advanta Business Services Corp.
Registration Statement on Form S-1 (333-38575)
Ladies and Gentlemen:
On behalf of Advanta Business Services Corp. (the
"Registrant"), transmitted herewith by electronic transmission under
the EDGAR system for filing with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended and
Rule 101(a) of Regulation S-T, is the Pre-Effective Amendment No. 4 to
Registration Statement No. 333-38575 (the "Registration Statement").
Should you have any questions or comments with respect to the
foregoing, please contact the undersigned at (212) 259-8312.
Very truly yours,
/s/ Todd Russell Lee
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Todd Russell Lee