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EXHIBIT 3.2.2
ADVANTA LEASING RECEIVABLES CORP. VIII
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 personally or by
mail to each stockholder entitled to vote at
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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 Private Corporations 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
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Incorporation, including 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 six 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 annual meeting or to
fill a vacancy or otherwise) shall continue in
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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
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meeting is to be held, or shall be sent to 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 Private Corporations 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
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Directors.
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-thirds 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
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statute, these Bylaws or the Articles of Incorporation directed or required to
be exercised or done by the stockholders.
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) financial contracts including but not limited
to, lease contracts, loans, accounts receivables, credit card
receivables, credit line 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 or
goods, receivables or other rights to monies due or to become due under
any such financial contracts, whether
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or not secured by such equipment or goods, security interests therein,
proceeds from claims on insurance policies related thereto, or (ii) the
equipment and/or goods which are the subject of any of such financial
contracts or the residual value of such equipment or goods or rights in
such equipment or goods or any interest therein and the right to
acquire equipment or goods or an interest therein or proceeds from the
sale or other disposition of such equipment or goods or any other
interest in such equipment or goods and the proceeds thereof and rights
therein or value thereof or (iii) any participation interest
(including, without limitation, interest only strips) in or security
based on or backed by any of the foregoing and related rights and other
property appurtenant thereto (items in (a)(i), (a)(ii) and (a) (iii)),
collectively, the "Assets");
(b) enter into agreements, to acquire assets by purchase
contribution or any other method;
(c) 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;
(d) from time to time, to transfer, pledge and/or grant a
security interest or other lien on Assets to one or more trusts, banks,
financial institutions, commercial paper issuers, insurance companies
or similar entities 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
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acting as servicer of the Assets;
(e) to transfer from time to time Assets pursuant to one or
more receivables transfer agreements, sale and purchase 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;
(f) 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;
(g) to authorize, borrow, 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 Receivables Transfer Agreement 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 except to the extent of the Assets or the
certificates securing or collateralizing such Asset-Backed Securities
and to enter into interest rate swaps, interest rate caps or other
hedging transactions;
(h) to acquire from the Trustee certificates or other
subordinate Asset-Backed Securities issued under the Securitization
Agreements or Receivables Transfer Agreement pursuant to which the
Corporation transferred Assets or granted security interests;
(i) 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
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related agreements;
(j) 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;
(k) to perform its obligations under each Securitization
Agreement, Receivables Transfer Agreement, Interim Agreement (as
defined below) or other agreement entered into by the Corporation;
(l) to invest proceeds from any Assets, and any other income
as determined by the Board of Directors, including investing in other
Assets;
(m) 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
(n) to engage in any acts and activities and exercise any
powers permitted to corporations under the laws of the State of Nevada
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
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any provision of law which otherwise so empowers the Corporation, the
Corporation shall not perform any act in contravention of any of the following:
(a) (i) (x) consolidate or merge with or into any other
entity or convey, transfer or assign to any Related Company (as defined
below), or dissolve or transfer its properties and assets substantially
as an entirety to any entity (other than pursuant to a Securitization
Agreement or a Receivables Transfer Agreement), or lend or advance any
moneys to, or make an investment in, any person or amend or repeal
Article FOURTH (b), Article SIXTH, Article NINTH or Article EIGHT of
the Articles of Incorporation or (y) engage in any other action that
bears on whether the separate legal identity of the Corporation and any
Related Company will be respected, including, without limitation (a)
holding itself out as being liable for the debts of any other party;
(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; and (e) failing to hold
meetings of the stockholders at least one time per annum;
(ii) 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;
(iii) 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
(A) the entity (if other than the Corporation) formed
or surviving
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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 has Articles of Incorporation containing
provisions substantially identical to the provisions of
Articles FOURTH, SIXTH and EIGHTH of the Articles of
Incorporation of the Corporation; and
(B) 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; or
(iv) without (A) the affirmative vote of 100% of the
members of the Board of Directors of the Corporation (including an
affirmative vote of each Independent Director required by Article
FOURTH of the Articles of Incorporation ) and (B) 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 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
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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 Article EIGHTH of the Articles of Incorporation shall not be
taken unless and until two directors meeting the requirements of
Article FOURTH (b) of the Articles of Incorporation shall have been
elected. (b) except as otherwise provided in the documents relating to
the securitization of the Assets,
(i) commingle the Corporation's assets with those of any
direct or ultimate parent of the Corporation or any subsidiary or
affiliate of any such parent;
(ii) fail to maintain separate corporate records and books of
account from those of any direct or ultimate parent of the Corporation
or any subsidiary or affiliate of any such parent;
(iii) fail to conduct its business from an office separate
from any direct or ultimate parent of the Corporation or any subsidiary
or affiliate of any such parent;
(iv) fail to maintain its assets separately from the accounts
of any other person (including through maintenance of a separate bank
account); and
(v) fail to pay from its assets all obligations and
indebtedness of any kind incurred 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
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quorum, may unanimously appoint another director to act at such meeting in the
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
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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 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
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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.
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
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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 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
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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 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
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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;
(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:
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(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 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
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(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 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
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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 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
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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 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
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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.
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
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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, 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
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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 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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