Exhibit 3.2
ACCESS FINANCIAL LENDING CORP.
(FORMERLY ACCESS FINANCIAL CORP.)
BY-LAWS
(As Amended and Restated on August 11, 1994
and Further Amended on January 15,1996,
with an effective date of January 22, 1996)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Atlanta, State of Georgia, at such place
as may be fixed from time to time by the board of directors, or at such other
place either within or without the State of Delaware as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the second
Wednesday of January (commencing in year 1995) if not a legal holiday, and if a
legal holiday, then on the next business day following, at noon (Eastern time),
or at such other date and time as shall be designated from time to time by the
board of directors and stated in the notice of meeting, for the election of
directors and to transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be
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specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of at least three voting
members of the board of directors, or at the request in writing of stockholders
owning at least 30% of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten or more than sixty days before the date
of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question, except the election of directors
(for which only a plurality vote shall be required), brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation, a different vote is required in
which case such express provision shall govern and control the decision of such
question.
Section 10. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
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Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board of directors shall not be less than three nor more than twelve, excluding
any non-voting directors and board observers. The first board of directors shall
consist of three directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders except as provided in Section 2 of this
Article, and each director elected shall hold office until such person's
successor is duly elected and qualified or until such person's earlier
resignation or removal. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and each director so chosen shall hold office until the next annual
election and until such person's successor is duly elected and qualified or
until such person's earlier resignation or removal.
Section 3. The business of the corporation shall be managed by the board
of directors, which may exercise all such powers of the corporation and do all
such lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Section 4. The board of directors may elect non-voting directors and
appoint board observers, each to hold such position until such person's
successor is duly elected or appointed, as applicable, and qualified or until
such person's earlier resignation or removal. Each voting director shall be
entitled to one vote. Non-voting directors and board observers shall not be
entitled to vote and accordingly and without limitation shall not (a) count
towards the existence of a quorum for purposes of Section 9 of this Article or
Section 141(b) of the Delaware General Corporation Law, (b) be included in the
calculation of whether a voting majority exists for the purpose of determining
an act of the board of directors under Section 9 of this Article or Section
141(b) of the Delaware General Corporation Law, and (c) be included in the
determination of whether all members of the board of directors consent in
writing to an action under Section 10 of this Article or Section 141(f) of the
Delaware General Corporation Law.
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However, non-voting board members and board observers shall be entitled to all
notices and information provided to voting directors, when and in the form
provided, and to attend all meetings of the board of directors.
MEETINGS OF THE BOARD OF DIRECTORS OF DIRECTORS
Section 5. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 6. The first meeting of each newly elected board of directors
shall be held immediately after the annual meeting of stockholders, at the place
of such annual meeting of stockholders, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event that such first
meeting of the newly elected board of directors is not held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board of directors.
Section 8. Special meetings of the board of directors may be called by
the chairman of the board or the president on two days' notice to each director,
such notice to be given personally, by telephone or be overnight or hand
delivery; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of two voting directors.
Section 9. At all meetings of the board of directors a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of director, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting until a quorum shall be present.
Section 10. Unless otherwise restricted by the certificate of
incorporation, or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board of directors, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board of directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. Any such committee,
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to the extent provided in the resolution of the board of directors, 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 to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or 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,
or amending the by-laws; and, unless the resolution or the certificate of
incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any person, unless otherwise explicitly provided, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such person at such person's address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by hand or overnight
delivery, or by any reasonable equivalent thereto.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also elect a chairman of the board (who
shall also serve as the chief executive officer of the corporation) and such
additional vice-presidents, and one or more assistant vice-presidents, assistant
secretaries and assistant treasurers as it may determine. Any number of offices
may be held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
CHAIRMAN OF THE BOARD; CHIEF EXECUTIVE OFFICER
Section 5. The chairman of the board shall be the chief executive
officer of the corporation. The chairman of the board shall preside at all
meetings of the stockholders and directors and shall see that orders and
resolutions of the board of directors are carried into effect. The chairman of
the board shall have the power to execute, on behalf of the corporation, bonds,
mortgages, deeds, contracts and other documents, which the board of directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by law, by the board of directors or by
these by-laws to some other officer or agent of the corporation. The chairman of
the board may vote all shares of stock of any other corporation standing in the
name of the corporation except where the voting thereof shall be expressly
delegated by the board of directors to some other officer or agent of the
corporation. The chairman of the board shall have general powers of supervision
and management of the business of the corporation and shall be the final arbiter
of all differences between officers of the corporation and his or her decision
as to any matter affecting the corporation shall be final and binding as between
the officers of the corporation, subject only to the board of directors of the
corporation.
THE PRESIDENT
Section 6. The President shall, in the absence of the chairman of the
board, have all the powers and perform all the duties of the chairman of the
board. The President shall have such other powers and perform such other duties
as from time to time may be assigned to him or her by the
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board of directors or the chairman of the board.
THE VICE-PRESIDENTS AND ASSISTANT VICE-PRESIDENTS
Section 7. In the absence of the president or in the event of such
person's inability or refusal to act, the vice-president (or in the event there
be more than one vice-president, the vice-presidents in the order designated, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents and assistant vice-presidents shall perform such other duties
and have such other powers as the board of directors, the chairman of the board
or the president may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 8. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors and shall
perform such other duties as may be prescribed by the board of directors or
chairman of the board, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it; and when so affixed, it maybe attested by his signature or by the signature
of such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the corporation and to attest the
affixing thereof by his signature.
Section 9. In the absence of the secretary or in the event of such
person's inability or refusal to act, the assistant secretary, (or in the event
there be more than one assistant secretary, the assistant secretaries in the
order designated, or in the absence of any designation, then in the order of
their election) shall perform such other duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURER
Section 10. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 11. The treasurer shall disburse the funds of the corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
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Section 12. If required by the board of directors, the treasurer shall
give the corporation a bond (which shall be renewed every six years) in such sum
and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of such person's death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 13. In the absence of the treasurer or in the event of his
inability or refusal to act, the assistant treasurer, (or in the vent there
shall be more than one, the assistant treasurers in the order designated, or in
the absence of any designation, then in the order of their election), shall
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation by, the
president, or a vice president, and the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation.
Section 2. Any of or all the signatures on a certificate representing
shares of stock in the corporation may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Every certificate representing shares of stock which are
restricted as to transferability shall bear a legend to such effect.
LOST CERTIFICATES
Section 4. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing such issue of
a new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such person's legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
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TRANSFERS OF STOCK
Section 5. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate duly endorsed or accompanied by proper evidence
of succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books; provided, that
transfers of stock of the corporation may be subject to restrictions set forth
in one or more agreements to which the corporation is a party (each, a
"Stockholder's Agreement").
Section 6. The corporation may cause stop transfer orders to be recorded
in the stock transfer books of the corporation and with any transfer agent or
registrar to assure that certificates will not be transferred except in
compliance with the applicable Stockholder's Agreement. The corporation (or such
transfer agent or registrar) may require, in connection with any transfer
purported to be made pursuant to a Stockholder's Agreement, appropriate proof
that such transfer complies with the requirements thereof and hereof.
FIXING RECORD DATE
Section 7. 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 corporation action in writing
without a meeting or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 8. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting in accordance with
applicable law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the certificate of incorporation.
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Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
WRITTEN INSTRUMENTS
Section 3. All contracts, deeds, checks or demands for money, notes of
the corporation, or other documents and instruments shall be signed by such
officer or officers or such other person or persons as these by-laws may provide
or as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 6. Each person (including the heirs, executors, administrators,
or estate of such person) who by reason of the fact that such person is or was a
voting or non-voting director, board observer or officer of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership joint venture, trust or
other enterprise, (an "Indemnitee"), and who was, is or is threatened to be made
a defendant in any threatened, pending or completed suit, action or proceeding
(a "Proceeding"), shall be indemnified by the corporation to the full extent
permitted or authorized by the General Corporation Law of Delaware against any
liability, judgment, fine, amount paid in settlement, cost and expense
(including attorneys' fees) actually and reasonably incurred by such person in
defense of said suit, action or proceeding.
The corporation shall, from time to time, advance all reasonable
expenses incurred by or on behalf of an Indemnitee in connection with a
Proceeding within 20 days after the receipt by the corporation of a statement
from such Indemnitee requesting such advance or advances whether receipt of the
request is prior to or after the final disposition of that Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred by or on
behalf of such Indemnitee and shall include, or be preceded by, an undertaking
by such Indemnitee to repay any expenses advanced if it shall ultimately be
determined that such Indemnitee is not entitled to be indemnified against such
expenses.
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The corporation, at its expense, may, but shall not be obligated to,
maintain insurance on behalf of itself and any Indemnitee against any liability,
judgment, fine, amount paid in settlement, cost and expense incurred by the
corporation, or incurred by such Indemnitee whether or not the corporation would
have the power to indemnify such Indemnitee against such liability under the
General Corporation Law of Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation, at any regular meeting of the stockholders or of the board of
directors, or at any special meeting of the stockholders or of the board of
directors, if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting.
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