BYLAWS OF
AVTEL COMMUNICATIONS, INC.
A UTAH CORPORATION
(FORMERLY HI, TIGER INTERNATIONAL, INC, A UTAH CORPORATION)
PRICE, POSTEL & PARMA, LLP
Attorneys at Law
200 East Carrillo Street
Santa Barbara, California 93101
BYLAWS
------
Table of Contents
-----------------
Article Page
- ------- ----
ARTICLE I SHAREHOLDERS........................................ 1
Section 1. Place of Meetings................................... 1
Section 2. Annual Meetings..................................... 1
Section 3. Special Meetings.................................... 1
Section 4. Notice of Meetings.................................. 2
Section 5. Consent to Shareholders' Meetings................... 2
Section 6. Shareholders Acting Without a Meeting............... 3
Section 7. Quorum.............................................. 4
Section 8. Voting Rights....................................... 4
Section 9. Proxies............................................. 4
ARTICLE II DIRECTORS........................................... 5
Section 1. Powers.............................................. 5
Section 2. Number and Qualification of Directors............... 6
Section 3. Election and Term of Office......................... 7
Section 4. Vacancies........................................... 7
Section 5. Place of Meeting.................................... 8
Section 6. Organization Meeting................................ 8
Section 7. Other Regular Meetings.............................. 8
Section 8. Special Meetings.................................... 8
Section 9. Action Without Meeting.............................. 9
Section 10. Action at a Meeting: Quorum and Required Vote...... 9
Section 11. Validation of Defectively Called or Noticed
Meetings............................................ 9
Section 12. Adjournment......................................... 10
Section 13. Notice of Adjournment............................... 10
Section 14. Fees and Compensation............................... 10
ARTICLE III OFFICERS............................................ 10
Section 1. Officers............................................ 10
Section 2. Election............................................ 10
Section 3. Subordinate Officers, Etc........................... 11
Section 4. Removal and Resignation............................. 11
- i -
Section 5. Vacancies........................................... 11
Section 6. Chairman of the Board............................... 11
Section 7. President........................................... 11
Section 8. Vice-President...................................... 12
Section 9. Secretary........................................... 12
Section 10. Chief Financial Officer............................. 12
ARTICLE IV MISCELLANEOUS....................................... 13
Section 1. Record Date......................................... 13
Section 2. Corporate Records................................... 13
Section 3. Inspection of Corporate Records..................... 14
Section 4. Checks, Drafts, Etc................................. 14
Section 5. Annual and Other Reports............................ 15
Section 6. Contracts, Etc., How Executed....................... 15
Section 7. Certificate for Shares.............................. 15
Section 8. Representation of Shares of Other Corporations...... 16
Section 9. Inspection of Bylaws................................ 16
Section 10. Construction and Definitions........................ 16
ARTICLE V INDEMNIFICATION..................................... 17
Section 1. Definitions......................................... 17
Section 2. Indemnification in Actions by Third
Parties............................................. 17
Section 3. Indemnification in Actions by or in
the Right of the Corporation........................ 17
Section 4. Indemnification Against Expenses.................... 18
Section 5. Required Determinations............................. 18
Section 6. Advance of Expenses................................. 19
Section 7. Other Indemnification............................... 19
Section 8. Forms of Indemnification not Permitted.............. 19
Section 9. Insurance........................................... 19
ARTICLE VI AMENDMENTS.......................................... 20
Section 1. Power of Shareholders............................... 20
Section 2. Power of Directors.................................. 20
- ii -
CERTIFICATE OF AMENDMENT
OF THE BYLAWS OF
AVTEL COMMUNICATIONS, INC., A UTAH CORPORATION
(FORMERLY HI, TIGER INTERNATIONAL, INC., A UTAH CORPORATION)
1. The Bylaws of this corporation were amended in full, effective October 23,
1996 by the Board of Directors and by approval of the Shareholders of the
Corporation at a special meeting on October 23, 1996, to read in their
entirety as follows:
ARTICLE I
SHAREHOLDERS
Section 1. Place of Meetings
-----------------
All meetings of the shareholders shall be held either at the principal
executive office of the corporation or at any other place within or without the
State of Utah which may be designated for that purpose from time to time by the
Board of Directors.
Section 2. Annual Meetings
---------------
The annual meeting of the shareholders shall be held on the third Monday of
September in each year, if not a legal holiday, and if a legal holiday, then on
the next succeeding business day, at the hour of 10:00 a.m., at which time the
shareholders shall elect by plurality vote a Board of Directors, consider
reports of the affairs of the corporation, and transact such other business as
may properly be brought before the meeting.
Section 3. Special Meetings
----------------
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by the Chairman of the Board or the
President, or by the Board of Directors, or by one or more shareholders holding
not less than ten percent (10%) of the voting power of the corporation. Upon
request, in writing, directed to the Chairman of the Board, President, any Vice-
President or Secretary by any person (other than the Board) entitled to call a
special meeting of shareholders, the officer forthwith shall cause notice to be
given to shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than thirty-
five nor more than sixty days after receipt of the request. If the notice is
not given within twenty days after receipt of the request, the person entitled
to call the meeting may give the notice. The Board may call a special meeting
at any time upon compliance with the notice requirements set forth in Section 4
of Article I of these Bylaws.
- 1 -
Section 4. Notice of Meetings
------------------
Notice of meetings, annual or special, shall be given in writing to
shareholders entitled to vote by the Secretary or the Assistant Secretary, or if
there be no such officer, or in case of officer's neglect or refusal, by any
director or shareholder.
Such notices shall be sent to the shareholder's address appearing on the
books of the corporation, or supplied by shareholder to the corporation for the
purpose of notice, not less than ten days nor more than sixty days before such
meeting.
Such notice shall specify
(a) the place, the date, and the hour of such meeting;
(b) those matters which the board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees intended at the
time of the notice to be presented by management for election;
(d) the general nature of a proposal, if any, to take action with respect
to approval of, (i) a contract or other transaction with an interested
director, (ii) amendment of the Articles of Incorporation, (iii) a
reorganization of the corporation as defined in the Utah Revised
Business Corporation Act, (iv) voluntary dissolution of the
corporation, or (v) a distribution in dissolution other than in
accordance with rights of outstanding preferred shares, if any;
(e) in the case of a special meeting, the general nature of the business to
be transacted, and no other business may be transacted; and
(f) such other matters, if any, as may be expressly required by statute.
When a meeting is adjourned for forty-five days or more, or if after
adjournment a new record date is fixed, notice of the adjourned meeting shall be
given as in case of an original meeting. Otherwise, it shall not be necessary
to give any notice of the adjournment or of the business to be transacted at an
adjourned meeting other than by announcement of the time and place thereof at
the meeting at which such adjournment is taken.
Section 5. Consent to Shareholders' Meetings
---------------------------------
The transactions of any meeting of shareholders, either annual or special,
however called and noticed, shall be as valid as though at a meeting duly held
after regular call
- 2 -
and notice, if a quorum be present either in person or by proxy, and if,
either before or after the meeting, each of the persons entitled to vote, not
present in person or by proxy, or who, though present, has, at the beginning of
the meeting, properly objected to the trans action of any business because the
meeting was not lawfully called or convened, or to par ticular matters of
business legally required to be included in the notice, but not so included,
signs a written waiver of notice, or a consent to the holding of such meeting,
or an approval of the minutes thereof. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 6. Shareholders Acting Without a Meeting
-------------------------------------
Directors may be elected without a meeting by a consent in writing, setting
forth the action so taken, signed by all of the persons who would be entitled to
vote for the election of directors, provided that, without notice except as
hereinafter set forth, a director may be elected at any time to fill a vacancy
not filled by the directors by the written consent of persons holding a majority
of the outstanding shares entitled to vote for the election of directors.
Any other action which, under any provision of the Utah Revised Business
Corporation Act, may be taken at a meeting of the shareholders, may be taken
without a meeting, and without notice except as hereinafter set forth, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares 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. Unless the consents of
all shareholders entitled to vote have been solicited in writing,
(a) Notice of any proposed shareholder approval of, (i) a contract or other
transaction with an interested director, (ii) indemnification of an
agent of the corporation as authorized by the Utah Revised Business
Corporation Act, (iii) a reorganization of the corporation as defined
in the Utah Revised Business Corporation Act, or (iv) a distribution in
dissolution other than in accordance with the rights of outstanding
preferred shares, if any, without a meeting by not less than unanimous
written consent, shall be given at least ten (10) days before the
consummation of the action authorized by such approval; and
(b) Prompt notice shall be given of the taking of any other corporate
action approved by shareholders without meeting by less than unanimous
written consent, to those shareholders entitled to vote who have not
consented in writing. Such notices shall be given in the manner and
shall be deemed to have been given as provided in Section 4 hereof.
Section 7. Quorum
------
- 3 -
The holders of a majority of the shares entitled to vote thereat, present
in person, or represented by proxy, shall be requisite and shall constitute a
quorum at all meet ings of the shareholders for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation, or by
these Bylaws. If, however, such majority shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote there,
present in person, or by proxy, shall have power to adjourn the meeting from
time to time, until the requisite amount of voting shares shall be present. At
such adjourned meeting at which the requisite amount of voting shares shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
The shareholders present at a duly called or held meeting at which a quorum
is present may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
Section 8. Voting Rights
-------------
Only persons in whose names shares entitled to vote stand on the stock
records of the corporation at the close of business on the business day next
preceding the day on which notice of the meeting is given or if such notice is
waived, at the close of business on the business next day preceding the day on
which the meeting of shareholders is held, shall be entitled to vote at such
meeting, and such day shall be the record date for such meeting. Such vote may
be viva voce or by ballot; provided, however, that all elections for directors
---------
must be by ballot upon demand made by a shareholder at any election and before
the voting begins. If a quorum is present, except with respect to election of
directors, the affirmative vote of the majority of the shares represented at the
meeting and entitled to vote on any matter shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by the Utah
Revised Business Corporation Act or the Articles of Incorporation.
Section 9. Proxies
-------
Every person entitled to vote or execute consents shall have the right to
do so either in person or by one or more agents authorized by a written proxy
executed by such person or such person's duly authorized agent and filed with
the Secretary of the corporation. Any proxy duly executed is not revoked and
continues in full force and effect until, (i) an instrument revoking it or a
duly executed proxy bearing a later date is filed with the Secretary of the
corporation prior to the vote pursuant thereto, (ii) the person executing the
proxy attends the meeting and votes in person, or (iii) written notice of the
death or incapacity of the maker of such proxy is received by the corporation
before the vote pursuant thereto is counted; provided that no such proxy shall
be valid after the expiration of eleven (11) months from the date of its
execution, unless the person executing it specifies therein the length of time
for which such proxy is to continue in force.
- 4 -
ARTICLE II
DIRECTORS
Section 1. Powers
------
Subject to limitations of the Articles of Incorporation and of the Utah
Revised Business Corporation Act as to action to be authorized or approved by
the shareholders, and subject to the duties of directors as prescribed by the
Bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the corporation shall be controlled by, the
Board of Directors. Without prejudice to such general powers, but subject to
the same limitations, it is hereby expressly declared that the directors shall
have the following powers, to wit:
First - To select and remove all the officers, agents and employees of
-----
the corporation; prescribe such powers and duties for them as may not be
inconsistent with law, with the Articles of Incorporation or the Bylaws; fix
their compensation; and require from them security for faithful service.
Second - To conduct, manage, and control the affairs and business of the
------
corporation, and to make such rules and regulations therefor not inconsistent
with law, or with the Articles of Incorporation or the Bylaws, as they may deem
best.
Third - To change the principal executive office and principal office for
-----
the transaction of the business of the corporation from one location to another
as provided in Article I, Section 1, hereof; to fix and locate from time to time
one or more subsidiary offices of the corporation within or without the State of
Utah; to designate any place within or without the State of Utah for the holding
of any shareholders' meeting or meetings; and to adopt, make and use a corporate
seal, and to prescribe the forms of certificates of stock, and to alter the form
of such seal and of such certificates from time to time, as in their judgment
they may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law.
Fourth - To authorize the issue of shares of stock of the corporation
------
from time to time, upon such terms as may be lawful.
Fifth - To borrow money and incur indebtedness for the purposes of the
-----
corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
Sixth - By resolution adopted by a majority of the authorized number of
-----
directors, to designate an executive and other committees, each consisting of
two or more directors, to serve at the pleasure of the Board, and to prescribe
the manner in which
- 5 -
proceedings of such committee shall be conducted. Unless the Board of Directors
shall otherwise prescribe the manner of proceedings of any such committee,
meetings of such committee may be regularly scheduled in advance and may be
called at any time by any two members thereof; otherwise, the provisions of
these Bylaws with respect to notice and conduct of meetings of the Board shall
govern. Any such committee, to the extent provided in a resolution of the Board,
shall have all of the authority of the Board, except with respect to:
(i) the approval of any action for which the Utah Revised Business
Corporation Act or the Articles of Incorporation also require
shareholder approval;
(ii) the filling of vacancies on the Board or in any committee;
(iii) the fixing of compensation of the directors for serving on the Board
or on any committee;
(iv) the adoption, amendment or repeal of Bylaws;
(v) the amendment or repeal of any resolution of the Board;
(vi) any distribution to the shareholders, except at a rate or in a
periodic amount or within a price range determined by the Board; and
(vii) the appointment of other committees of the Board or the members
thereof.
Section 2. Number and Qualification of Directors
-------------------------------------
The authorized number of directors shall be no less than three (3) and no
more than five (5) until changed by amendment of the Articles of Incorporation
or by a Bylaw amendment of this Section 2 duly adopted by the vote or written
consent of holders of a majority of the outstanding shares entitled to vote;
provided that a proposal to reduce the authorized number of directors below
three (3) cannot be adopted if the votes cast against its adoption at a meeting,
or the shares not consenting in the case of action by written consent, are equal
to more than 16-2/3 percent of the outstanding shares entitled to vote.
Section 3. Election and Term of Office
---------------------------
The directors shall be elected at each annual meeting of shareholders but,
if any such annual meeting is not held or the directors are not elected thereat,
the directors may be elected at any special meeting of shareholders held for
that purpose. All directors shall hold office until their respective successors
are elected, subject to the Utah Revised Business Corporation Act and the
provisions of these Bylaws with respect to vacancies on the Board.
- 6 -
Section 4. Vacancies
---------
A vacancy in the Board of Directors shall be deemed to exist in case of the
death, resignation or removal of any director, if a director has been declared
of unsound mind by order of court or convicted of a felony, if the authorized
number of directors be increased, or if the shareholders fail, at any annual or
special meeting of shareholders at which any director or directors are elected,
to elect the full authorized number of directors to be voted for at that
meeting.
Vacancies in the Board of Directors, except for a vacancy created by the
removal of a director, may be filled by a majority of the remaining directors,
though less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until his or her successor is elected at an annual or
a special meeting of the shareholders. A vacancy in the Board of Directors
created by the removal of a director may only be filled by the vote of a
majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present, or by the written consent of the holders of a
majority of the outstanding shares.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors. Any such election by written
consent shall require the consent of holders of a majority of the outstanding
shares entitled to vote.
Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary or the Board of Directors of
the corporation, unless the notice specifies a later time for the effectiveness
of such resignation. If the Board of Directors accepts the resignation of a
director tendered to take effect at a future time, the Board or the shareholders
shall have power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of the director's term of office.
- 7 -
Section 5. Place of Meeting
----------------
Regular meetings of the Board of Directors shall be held at any place
within or without the state which has been designated from time to time by
resolution of the Board or by written consent of all members of the Board. In
the absence of such designation regular meetings shall be held at the principal
executive office of the corporation. Special meetings of the Board may be held
either at a place so designated or at the principal executive office.
Section 6. Organization Meeting
--------------------
Immediately following each annual meeting of shareholders the Board of
Directors shall hold a regular meeting at the place of said annual meeting or at
such other place as shall be fixed by the Board of Directors, for the purpose of
organization, election of officers, and the transaction of other business. Call
and notice of such meetings need not be given.
Section 7. Other Regular Meetings
----------------------
Other regular meetings of the Board of Directors shall be held quarterly
without call on the third Friday of December, March and June of each year;
provided, however, should said day fall upon a legal holiday, then said meeting
shall be held at the same time on the next day thereafter ensuing which is a
full business day. Notice of all such regular meetings of the Board of
Directors need not be given.
Section 8. Special Meetings
----------------
Special meetings of the Board of Directors for any purpose or purposes
shall be called at any time by the Chairman of the Board, the President, any
Vice-President, the Secretary or by any two directors.
Special meetings of the Board shall be held upon four days' written notice
or 48 hours' notice given personally or by telephone, telegraph, telex, or other
similar means of communication. Any such notice shall be addressed or delivered
to each director at such director's address as it is shown upon the records of
the corporation or as may have been given to the corporation by the director for
purposes of notice or, if such address is not shown on such records or is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held.
- 8 -
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by electronic means, to
the recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone or wireless, to the recipient or to a
person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
Section 9. Action Without Meeting
----------------------
Any action by the Board of Directors may be taken without a meeting if all
members of the Board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes
of the proceedings of the Board and shall have the same force and effect as a
unanimous vote of such directors.
Section 10. Action at a Meeting: Quorum and Required Vote
------------------------------------------- ----
Presence of a majority of the authorized number of directors at a meeting
of the Board of Directors constitutes a quorum for the transaction of business,
except as herein after provided. Members of the Board may participate in a
meeting through use of conference telephone or similar communications equipment,
so long as all members partici pating in such meeting can hear one another.
Participation in a meeting as permitted in the preceding sentence constitutes
presence in person at such meeting. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors, unless a greater
number, or the same number after disqualifying one or more directors from
voting, is required by law, by the Articles of Incorporation, or by these
Bylaws. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of a director, provided that
any action taken is approved by at least a majority of the required quorum for
such meeting.
Section 11. Validation of Defectively Called or
-----------------------------------
Noticed Meetings
----------------
The transactions of any meeting of the Board of Directors, however, called
and noticed or wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum is present and if, either before
or after the meeting, each of the directors not present or who, though present,
has prior to the meeting or at its com mencement, protested the lack of proper
notice to him or her, signs a written waiver of notice or a consent to holding
such meeting or an approval of the minutes thereof. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
- 9 -
Section 12. Adjournment
-----------
A quorum of the directors may adjourn any directors' meeting to meet again
at a stated day and hour; provided, however, that in the absence of a quorum a
majority of the directors present at any directors' meeting, either regular or
special, may adjourn from time to time until the time fixed for the next regular
meeting of the Board.
Section 13. Notice of Adjournment
---------------------
If the meeting is adjourned for more than twenty- four (24) hours, notice
of any adjournment to another time or place shall be given prior to the time of
the adjourned meeting to the directors who were not present at the time of
adjournment. Otherwise notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place be fixed at
the meeting adjourned.
Section 14. Fees and Compensation
---------------------
Directors and members of committees may receive such compensation, if any,
for their services, and such reimbursement for expenses, as may be fixed or
determined by resolution of the Board.
ARTICLE III
OFFICERS
Section 1. Officers
--------
The officers of the corporation shall be a President, a Vice-President, a
Secretary and a Chief Financial Officer. The corporation may also have, at the
discretion of the Board of Directors, a Chairman of the Board, a Chief Executive
Officer, a Treasurer, one or more additional Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
as may be appointed in accordance with the provisions of Section 3 of this
Article. One person may hold two or more offices.
Section 2. Election
--------
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Section 3 or Section 5 of this Article,
shall be chosen annually by the Board of Directors, and each officer shall hold
office until he or she shall resign or shall be removed or otherwise
disqualified to serve, or the officer's successor shall be elected or qualified.
-10-
Section 3. Subordinate Officers, Etc.
--------------------------
The Board of Directors may appoint, and may empower the President to
appoint, such other officers as the business of the corporation may require,
each of whom shall hold office, for such period, have such authority and perform
such duties as are provided in the Bylaws or as the Board of Directors may from
time to time determine.
Section 4. Removal and Resignation
-----------------------
Any officer may be removed, either with or without cause, by the Board of
Directors, at any regular or special meeting thereof, or, except in case of an
officer chosen by the Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors (subject, in each case, to
the rights, if any, of an officer under any contract of employment).
Any officer may resign at any time by giving written notice to the Board of
Directors or to the President, or to the Secretary of the corporation, without
prejudice however, to the rights, if any, of the corporation under any contract
to which such officer is a party. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 5. Vacancies
---------
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
the Bylaws for regular appointments to such office.
Section 6. Chairman of the Board
---------------------
The Chairman of the Board, if there shall be such an officer, shall, if
present, preside at all meetings of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned to the
Chairman of the Board by the Board of Directors or prescribed by the Bylaws.
Section 7. President
---------
Subject to such supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board, if there be such an officer, the
President shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation. The
Chairman shall preside at all meetings of the shareholders and, in the absence
of the Chairman of the Board, or if there be none, at all meetings of the Board
of
- 11 -
Directors. The chairman shall be ex-officio a member of all standing
committees, including the executive committee, if any, and shall have the
general powers, and duties of management usually vested in the office of
President of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or the Bylaws.
Section 8. Vice-President
--------------
In the absence or disability of the President, the Vice-Presidents in order
of their rank as fixed by the Board of Directors or, if not ranked, 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 the restrictions upon, the President. The Vice-Presidents shall have
such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors or the Bylaws.
Section 9. Secretary
---------
The Secretary shall record or cause to be recorded, and shall keep or cause
to be kept, at the principal executive office and such other place as the Board
of Directors may order, a book of minutes of actions taken at all meetings of
directors and shareholders, with the time and place of holding, whether regular
or special, and, if special, how authorized, the notice thereof given, the names
of those present or represented at shareholders' meetings, and the proceedings
thereof.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent, a share register,
or a duplicate share register, showing the names of the shareholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the Board of Directors required by the Bylaws or by
law to be given, and shall keep the seal of the corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or by the Bylaws.
Section 10. Chief Financial Officer
-----------------------
The Chief Financial Officer shall be the chief financial officer of the
corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus, and shares. Any surplus,
including earned surplus, paid-in surplus, and surplus arising from a reduction
of stated capital, shall be classified according to source and shown in a
separate
- 12 -
account. The books of account shall at all reasonable times be open to
inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board of Directors. The Chief Financial Officer shall
disburse the funds of the corporation as may be ordered by the Board of
Directors, shall render to the President and directors, whenever they request
it, an account of all of the Chief Financial Officer's transactions as such
Officer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
ARTICLE IV
MISCELLANEOUS
Section 1. Record Date
-----------
The Board of Directors may fix a time in the future as a record date for
the determination of the shareholders entitled to notice of and to vote at any
meeting of share holders or entitled to give consent to corporate action in
writing without a meeting, to receive any report, to receive any dividend or
distribution, or any allotment of rights, or to exercise rights in respect to
any change, conversion, or exchange of shares. The record date so fixed shall
be not more than sixty (60) days nor less than ten (10) days prior to the date
of any meeting, nor more than sixty (60) days prior to any other event for the
purposes of which it is fixed. When a record date is so fixed, only
shareholders of record on that date are entitled to notice of and to vote at any
such meeting, to give consent without a meeting, to receive any report, to
receive a dividend, distribution, or allotment of rights, or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date, except as otherwise provided in
the Articles of Incorporation or Bylaws.
Section 2. Corporate Records
-----------------
First: The corporation shall keep as permanent records minutes of all
-----
meetings of its shareholders and board, a record of all actions taken by the
shareholders or board without a meeting, and a record of all actions taken on
behalf of the corporation by a board committee in place of the board, and a
record of all waivers of notices of meetings of shareholders, board meetings, or
any board committee meetings. The corporation shall also maintain all
appropriate accounting records.
Second: The corporation or its agent shall maintain a record of the names
------
and addresses of its shareholders, in a form that permits preparation of a list
of shareholders: (i) that is arranged by voting group and within each voting
group by class or series of shares; (ii)
- 13 -
that is in alphabetical order within each class or series; and (iii) that shows
the address of and the number of shares of each class and series held by each
shareholder.
Third: The corporation shall maintain at its principal office: (i) its
-----
articles of incorporation currently in effect; (ii) its bylaws currently in
effect; (iii) the minutes of all shareholders' meetings, and records of all
action taken by shareholders without a meeting, for the past three years; (iv)
all written communications within the past three years to shareholders as a
group or to the holders of any class or series of shares as a group; (v) a list
of the names and business addresses of its current officers and directors; (vi)
it most recent annual report delivered to the Division of Corporations and
Commercial Code under Section 16-10a-1605 of the Utah Revised Business
Corporation Act; and (vii) all financial statements prepared for periods ending
during the last three years that a shareholder could request under Section 16-
10a-1605 of the Utah Revised Business Corporation Act.
Fourth: After fixing a record date for a shareholders' meeting, the
------
corporation shall prepare a list of its shareholders who are entitled to be
given notice of the meeting, pursuant to Section 16-10a-720(1).
Section 3. Inspection of Corporate Records
-------------------------------
Any shareholder or director may inspect and copy, during regular business
hours at the corporation's principal office, any of the corporate records
described in the Third paragraph of Section 2 of this Article if such person
-----
gives the corporation five (5) days written notice of such a request.
Any shareholder or director may inspect and copy the accounting books and
records, the record of shareholders, and minutes of proceedings of the
shareholders and the Board and committees of the Board of this corporation and
any subsidiary of this corporation at any reasonable time during usual business
hours, if: (i) such person provides written notice of such a demand five (5)
days before the date the person wishes to inspect and copy, (ii) the demand is
made in good faith and for a proper purpose, (iii) the shareholder or director
describes with reasonable particularity the purpose and the records the person
wishes to inspect; and (iv) the records are directly connected with the purpose.
Section 4. Checks, Drafts, Etc.
--------------------
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness, issued in the name of or payable to the corporation,
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the Board of Directors.
Section 5. Annual and Other Reports
------------------------
- 14 -
The corporation shall deliver to the Division of Corporations and
Commercial Code for filing in a form provided by the Division that sets forth
the following: (i) the corporate name, (ii) the state under which law the
corporation is incorporated, (iii) the street address of its registered office
and the name of its registered agent at that office in Utah, (iv) the street
address of its principal office, (v) the names and addresses of its directors
and principal officers, and (vi) a brief description of the nature of its
business.
Section 6. Contracts, Etc., How Executed
-----------------------------
The Board of Directors, except as these Bylaws otherwise provide, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances; and, unless so
authorized by the Board of Directors, no officer, agent or employee shall have
any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or to any amount.
Section 7. Certificate for Shares
----------------------
Every holder of shares in the corporation shall be entitled to have a
certificate signed in the name of the corporation by the Chairman or Vice-
Chairman of the Board or the President or a Vice-President and by the Chief
Financial Officer or an Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any of the signatures on the certificate may be
facsimile, provided that in such event at least one signature, including that of
either officer or the corporation's registrar or transfer agent, if any, shall
be manually signed. 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 such person were an officer, transfer agent or registrar at the date of
issue.
Any such certificate shall also contain such legend or other statement as
may be required by Section 16-10a-625 of the Utah Revised Business Corporation
Act the federal securities laws, and any agreement between the corporation and
the issuee thereof.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the Board of Directors or the Bylaws may
provide; provided, however, that any such certificate so issued prior to full
payment shall state on the face thereof the amount remaining unpaid and the
terms of payment thereof.
No new certificate for shares shall be issued in lieu of an old certificate
unless the latter is surrendered and canceled at the same time; provided,
however, that a new certificate will be issued without the surrender and
cancellation of the old certificate if (1) the
- 15 -
old certificate is lost, apparently destroyed or wrongfully taken; (2) the
request for the issuance of the new certificate is made within a reasonable time
after the owner of the old certificate has notice of its loss, destruction, or
theft; (3) the request for the issuance of a new certificate is made prior to
the receipt of notice by the corporation that the old certificate has been
acquired by a bona fide purchaser; (4) the owner of the old certificate files a
sufficient indemnity bond with or provides other adequate security to the
corporation; and (5) the owner satisfies any other reasonable requirements
imposed by the corporation.
Section 8. Representation of Shares of Other Corporations
----------------------------------------------
The President or any Vice-President and the Secretary or any Assistant
Secretary of this corporation are authorized to vote, represent and exercise on
behalf of this corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officers.
Section 9. Construction and Definitions
----------------------------
Unless the context otherwise requires, the general provisions, rules of
construction and definitions contained in the Utah Revised Business Corporation
Act shall govern the construction of these Bylaws. Without limiting the
generality of the foregoing, the masculine gender includes the feminine and
neuter, the singular number includes the plural and the plural number includes
the singular, and the term "person" includes a corporation as well as a natural
person.
- 16 -
ARTICLE V
INDEMNIFICATION
Section 1. Definitions
-----------
For the purposes of this Article, "agent" includes any person who is or was
a director, officer, employee, or other agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, or other enterprise, or was a director, officer, employee, or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" includes any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under Section 4 or Section 5(c) of this
Article.
Section 2. Indemnification in Actions by Third Parties
-------------------------------------------
The corporation shall have the power to indemnify any person who was or is
a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was an agent of the corporation, against expenses, judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
Section 3. Indemnification in Actions by or in the Right of
------------------------------------------------
the Corporation
---------------
The corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed
- 17 -
action by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person is or was an agent of the corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such action if such person acted in good
faith, in a manner such person believed to be in the best interests of the
corporation, and with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3:
(a) In respect of any claim, issue, or matter as to which such person shall
have been adjudged to be liable to the corporation in the performance
of such person's duty to the corporation, unless and only to the extent
that the court in which such action was brought shall determine upon
application that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for the expenses
which such court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a threatened or
pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending action which
is settled or otherwise disposed of without court approval.
Section 4. Indemnification Against Expenses
--------------------------------
To the extent that an agent of the corporation has been successful on the
merits in defense of any proceeding referred to in Sections 2 or 3 of this
Article or in defense of any claim, issue, or matter therein, the agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
Section 5. Required Determinations
-----------------------
Except as provided in Section 4 of this Article, any indemnification under
this Article shall be made by the corporation only if authorized in the specific
case, upon a deter mination that indemnification of the agent is proper in the
circumstances because the agent has met the applicable standards of conduct set
forth in Sections 2 or 3 of this Article by:
(a) A majority vote of a quorum consisting of directors who are not parties
to such proceeding;
(b) Approval of the shareholders, with the shares owned by the person to be
indemnified not being entitled to vote thereon; or
- 18 -
(c) The court in which such proceeding is or was pending upon application
made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by the
corporation.
Section 6. Advance of Expenses
-------------------
Expenses incurred in defending any proceeding may be advanced by the
corporation prior to the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of the agent to repay such amount unless it shall be
determined ultimately that the agent is entitled to be indemnified as authorized
in this Article.
Section 7. Other Indemnification
---------------------
No provision made by the corporation to indemnify its or its subsidiary's
directors or officers for the defense of any proceeding, whether contained in
the Articles, Bylaws, a resolution of shareholders or directors, an agreement,
or otherwise, shall be valid unless consistent with this Article. Nothing
contained in this Article shall affect any right to indemnification to which
persons other than such directors and officers may be entitled by contract or
otherwise.
Section 8. Forms of Indemnification not Permitted
--------------------------------------
No indemnification or advance shall be made under this Article, except as
provided in Section 4 or Section 5(c) in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles, these
Bylaws, a resolution of the shareholders or an agreement in effect at
the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were
paid, which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed by a
court in approving a settlement.
Section 9. Insurance
---------
The corporation shall have the power to purchase and maintain insurance on
behalf of any agent of the corporation against any liability asserted against or
incurred by the agent in such capacity or arising out of the agent's status as
such whether or not the corporation would have the power to indemnify the agent
against such liability under the provisions of this Article.
- 19 -
ARTICLE VI
AMENDMENTS
Section 1. Power of Shareholders
---------------------
New Bylaws may be adopted or these Bylaws may be amended or repealed by the
affirmative vote of a majority of the outstanding shares entitled to vote or by
the written assent of shareholders entitled to vote such shares, except as
otherwise provided by law or by the Articles of Incorporation.
Section 2. Power of Directors
------------------
Bylaws, other than a Bylaw or amendment thereof changing the authorized
number of directors, may be adopted, amended or repealed by the Board of
Directors, subject to the right of shareholders as provided in Section 1 of this
Article to adopt, amend or repeal Bylaws.
- 20 -
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of AVTEL
COMMUNICATIONS, INC., a Utah corporation, formerly Hi, Tiger International,
Inc., a Utah corporation; and
2. That the foregoing Bylaws, comprising twenty (20) pages, constitute
the Bylaws of said corporation as duly adopted by action of the Board of
Directors of the corporation and by approval of the Shareholders of the
Corporation at a special meeting duly held on October 23, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal
of said corporation this ________ day of October, 1996.
_______________________________
JAMES P. PISANI
- 21 -