EXHIBIT 10.61
EXECUTION COPY
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SECURITIES PURCHASE AGREEMENT
Dated as of October 14, 1999
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EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is entered into as of
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October 14, 1999 between SIENA CAPITAL PARTNERS, L.P., a California limited
partnership ("Siena"), and PAISANO PUBLICATIONS, INC., a California corporation
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(the "Company").
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In consideration of the mutual covenants and agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
Section 1 ISSUANCE OF SECURITIES.
Section 1.1 Authorization. The Company has duly authorized the issue of its
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Increasing Rate Secured Promissory Note due October 14, 2000, in the principal
amount of US$275,000.00 (the "Note"), substantially in the form of Exhibit A
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hereto, and the Company's parent, Easyriders, Inc., a Delaware corporation
("Easyriders"), has duly authorized the issuance of warrants (the "Warrants") to
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purchase initially an aggregate of up to 100,000 shares of common stock,
US $.001 par value per share (the "Common Stock"), subject to adjustment,
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exercisable (in the event the Note has not been repaid on or before April 14,
2000) pursuant to that certain Warrant Agreement, substantially in the form of
Exhibit B hereto (the "Warrant Agreement"). The Note shall mature, shall bear
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interest, shall be payable and shall be otherwise as provided herein and in
Exhibit A. The Warrants shall be exercisable, transferable and subject to
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adjustment and shall be otherwise as provided herein and in Exhibit B. The Note,
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the Warrants, the Warrant Securities (as defined in the Warrant Agreement) and
certificates and other instruments from time to time evidencing the same, are
herein sometimes collectively called the "Securities."
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Section 1.2 Purchase and Sale of the Securities; the Closing. In reliance
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upon the representations of the Company contained in Section 1.5 hereof and
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subject to the terms and conditions set forth herein, Siena shall purchase the
Securities from the Company and the Company shall sell the Securities to Siena
for an aggregate purchase price of US$275,000.00 (the "Purchase Price"). The
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closing (the "Closing") of Siena's purchase of the Securities shall be held at
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10:00 a.m., Los Angeles time on October 14, 1999 (the "Closing Date"), at the
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offices of Siena Capital Partners, L.P. 150 South Rodeo Drive, Suite 100,
Beverly Hills, CA 90210 or at such other time or place as the parties hereto may
mutually agree.
On the Closing Date, the Company will deliver to Siena the Note in the
aggregate principal amount specified above, and Easyriders will deliver to Siena
the Warrants, registered in Siena's name or in the name of Siena's nominee or
nominees, as may be specified by Siena upon two (2) Business Days' advance
written notice to the Company, duly executed and dated the Closing Date, against
Siena's delivery to the Company (or to persons at the direction of the Company)
of immediately available funds in the amount of the Purchase Price (net of any
costs or expenses to be paid by the Company to Siena or their counsel pursuant
to Section 3.16 of this Agreement). For purposes of this Agreement, "Business
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Day" shall mean any day, except a Saturday, Sunday or other day on which
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commercial banks in the State of California are authorized or required by law to
close.
Section 1.3 The Note.
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(a) Rate of Interest. Subject to modification pursuant to Section
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1.3 (c) below, the Note shall bear interest from the Closing Date on the
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principal of the Note from time to time outstanding at a rate per annum equal
to thirteen percent (13%) (such rate, as increased as provided in this
Agreement, the "Cash Interest Rate"). The Note shall also bear additional
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capitalized interest from the Closing Date on the principal amount of the Note
from time to time outstanding at a rate per annum equal to seven percent (7%)
(such rate, as increased as provided in this Agreement, the "Capitalized
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Interest Rate" and together with the Cash Interest Rate, collectively, the
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"Interest Rate"). From and after April 14, 2000, the Capitalized Interest Rate
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shall increase to a rate per annum equal to eight percent (8%). The Capitalized
Interest Rate shall increase by an additional one percent (1%) on the 14th day
of each month thereafter.
(b) Payment of Interest. Interest shall be calculated in arrears
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through the last day of each month. The Company shall make monthly payments on
the interest that has accrued at the Cash Interest Rate on the last Business Day
of each month, commencing with November 30, 1999, and ending on October 14, 2000
(the "Maturity Date"). All other interest which has accrued at the Capitalized
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Interest Rate shall be capitalized into the principal of the Note and shall be
due and payable in full on the Maturity Date.
(c) Computation of Interest. Interest shall be computed on the Note
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on the basis of a 360-day year consisting of twelve (12) 30-day months and on
the actual number of days elapsed in any period including the Closing Date but
excluding the date by which Siena is deemed, pursuant to Section 1.3(g), to have
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received payment. Except as permitted pursuant to Section 1.3(b), any principal
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or interest payment due on the Note which is not paid when due, whether at
stated maturity, by notice of acceleration or otherwise, shall bear interest
(calculated in the manner set forth above) at a rate equal to the then-current
Interest Rate plus an additional five percent (5%) per annum.
(d) Payment of Principal. The outstanding principal balance of the
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Note shall be due and payable in full on the Maturity Date.
(e) Prepayments.
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(i) Optional. The Company may, from time to time, prepay the
Note, in whole or in part, so long as each partial prepayment of principal on
the Note is equal to or greater than US$50,000 and the Company has given Siena
one (1) or more Business Days' written notice of such optional prepayment. Any
such optional prepayment of principal shall be without premium or penalty. Each
prepayment of principal under this Section shall be accompanied by all interest
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then accrued and unpaid on the principal so prepaid. Any principal prepaid
pursuant to this Section shall be in addition to, and not in lieu of, all
payments otherwise required to be paid under the Note and this Agreement at the
time of such prepayment.
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(ii) Mandatory. Unless otherwise agreed to by Siena and subject
to the provisions of the Nomura Agreement (as defined below), the Company shall
prepay the Note to the extent of the net financing proceeds in excess of $50,000
actually received by the Company or its affiliates in the event that (A) the
Company completes any financing transaction (other than the purchase of the
Securities hereunder) whatsoever from and after the Closing Date, including
without limitation any public or private placements of debt or equity or (B)
Easyriders completes any financing transaction (subject to the provisions of
that certain Note and Warrant Purchase Agreement between Easyriders and Nomura
Holding America, Inc. dated September 23, 1998 (the "Nomura Agreement")) or any
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sale of any material assets of Easyriders or its subsidiaries. In addition, on
the last Business Day of each month commencing with April, 2000, the Company
shall prepay the Note in an amount equal to fifteen percent (15%) of the
Company's Excess Cash Flow on such date. For purposes hereof, "Excess Cash Flow"
shall have the meaning given such term in the Nomura Agreement.
(f) Finance Fee. As additional consideration and as an inducement for
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Siena's purchasing the Securities, the Company shall pay to Siena a financing
fee in immediately available funds in the amount of US$11,000.00 (the "Finance
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Fee") on the Closing Date.
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(g) General Payment Provisions. The Company shall make each payment
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which it owes under the Note or this Agreement not later than 11:00 a.m., Los
Angeles, California time, on the date such payment becomes due and payable, in
lawful money of the United States of America, without set-off, deduction or
counterclaim, and in immediately available funds sent by wire transfer to Siena
in care of Citibank, NA, 450 West 33rd Street, New York, New York, No.:
82100084, For the account of Lewco Securities, Account No.: 09253792, for the
account of Siena Capital Partners, L.P., Sub-account No.: W-7-8041738,
Reference: Paisano principal and interest (or to such other bank and accounts as
Siena may from time to time specify pursuant to written instructions received by
the Company no later than five (5) Business Days prior to such payment date).
Any payment received by Siena after such time shall be deemed to have been made
on the next following Business Day. Should any such payment become due and
payable on a day other than a Business Day, the maturity of such payment shall
be the next Business Day. Any amount received by Siena, whether as an interest
payment, principal payment or principal prepayment from or on behalf of the
Company, shall be applied as follows in descending order of priority: (i) to all
costs, fees and expenses of Siena (including reasonable attorneys' fees and the
Finance Fee) incurred in connection with this Agreement or in enforcing any
obligations of, or in collecting any payments from, any obligor hereunder or
under the Securities; (ii) to interest which has accrued on past due payments
hereunder; (iii) to interest that is currently due and payable on the Note; (iv)
to payment of principal on the Note currently due and payable; (v) to the
payment of past due principal on the Note; and (vi) to the prepayment of
principal due under the Note.
(h) No Further Obligation. Other than the payment of the Purchase
Price, which payment is subject to the terms and conditions hereof, and
notwithstanding whether or not the Company has repaid such amounts in whole or
in part, Siena shall have no obligation whatsoever to lend, advance or otherwise
pay any other monies to or on behalf of the Company.
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Section 1.4 The Warrants.
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To induce Siena to purchase the Note from the Company, concurrently
herewith, Easyriders and Siena are entering into the Warrant Agreement, pursuant
to which Easyriders shall execute and deliver to Siena a Warrant on the Closing
Date. The Warrant shall be dated as of the Closing Date and shall initially be
exercisable for the purchase of up to 100,000 shares of Common Stock (in the
event the Note has not been repaid on or before April 14, 2000). In the event
the Note has not been repaid in full on or before certain dates, as set forth in
the Warrant, the Warrant shall become exercisable for the purchase of additional
shares of Common Stock, as set forth in the Warrant.
Section 1.5 Representations and Warranties of the Company.
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The Company represents and warrants to Siena that on the date hereof and as
of the Closing Date:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and is duly qualified
as a foreign corporation in each jurisdiction in which the character of the
properties owned or held under lease by it or the nature of the business
transacted by it requires such qualification. The Company has all requisite
power to transact the business it transacts and proposes to transact, to execute
and deliver this Agreement, the Securities and all other documents and
agreements contemplated hereby and thereby, and to perform the provisions hereof
and thereof and to consummate the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement, the
Securities, and all other documents and agreements contemplated hereby and
thereby, and the consummation of the transactions contemplated hereby or
thereby, have been duly authorized and approved by the Company. This Agreement,
the Securities, and all other documents and agreements contemplated hereby and
thereby have each been duly authorized, executed and delivered by, and each is
the valid and binding obligation of, the Company enforceable against the Company
in accordance with its terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws or by legal or
equitable principles relating to or limiting creditors' rights generally.
(c) Except as set forth in Schedule 1.5(c) hereto or as set forth in
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the Company's most recent Securities Exchange Act of 1934 filings with the
Securities and Exchange Commission, copies of which have been provided to Siena
by the Company, the Company has no actual knowledge of any fact that materially
adversely affects, or could reasonably be expected to materially adversely
affect, the business, prospects, properties, assets, operations or financial
condition of the Company, or the ability of the Company to perform its
respective obligations under this Agreement, the Securities or any other
documents or agreements contemplated hereby and thereby.
(d) Easyriders owns all of the authorized capital stock of the
Company. The Common Stock and any Warrant Securities issued pursuant to the
Warrants will, when issued, be duly and validly issued, fully paid and
nonassessable. There are no other outstanding options, warrants or similar
rights of any person to acquire any of the capital stock of the Company and the
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Company has no contingent obligations to issue additional shares. The Company is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any of its capital stock or other securities or
obligation evidencing the right of any holder thereof to purchase any of its
capital stock or other securities.
(e) The consummation of the transactions contemplated by this
Agreement and the performance of the terms and provisions of this Agreement, the
Securities and any other documents or agreements contemplated hereby and thereby
will not (i) contravene, result in any breach of, or constitute a default under
any indenture, mortgage, deed of trust, bank loan or credit agreement, corporate
charter, by-laws or other material agreement or instrument to which the Company
is a party or by which the Company or any of its properties is bound, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order of any court, arbitrator or Federal, State, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (collectively, "Governmental Person")
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applicable to the Company or (iii) violate any material provision of any statute
or other rule or regulation of any Governmental Person applicable to the
Company.
(f) Except as set forth in Schedule 1.5(f) hereto, no consent,
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approval or authorization of, or registration, filing or declaration with, any
person or entity is required for the issuance of the Securities or the valid
execution and delivery of the Securities or for the performance by the Company
of this Agreement, the Securities, and any other documents or agreements
contemplated hereby and thereby, other than the filings, registrations or
qualifications under the securities laws or "blue sky" laws of any State that
may be required to be made or obtained in connection with the offer, issuance,
sale or delivery of the Securities or any interest therein.
(g) The Company possesses all material licenses, permits, franchises,
authorizations, patents, copyrights, trademarks and trade names and any other
tangible or intangible or intellectual property rights, or rights thereto,
required to conduct its business substantially as now conducted and as currently
proposed to be conducted, without actual knowledge of conflict with the rights
of others. A true, correct and complete list of the Company's material
intellectual property is attached as Schedule 1.5(g) hereto. The Company has not
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directly or indirectly, created, incurred, assumed or permitted to exist any
Lien (as hereinafter defined) on any such intellectual property.
(h) No employee benefit plan established or maintained by the Company
or to which the Company has made contributions is subject to Part 3 of Subtitle
B of Title 1 of the Employee Retirement Income Security Act of 1974, as amended,
or Section 412 of the Internal Revenue Code of 1954, as amended.
(i) Neither the Company nor anyone acting on its behalf has offered
the Securities, or any interest or participation therein, for sale to or
solicited any offer to buy the Securities, or any interest or participation
therein, from, or otherwise approached or negotiated in respect thereof with,
any person other than Siena, and its partners, officers, affiliates and
representatives. Neither the Company nor anyone acting on its behalf has taken
and will not take any action that would require the offer, issuance or sale of
the Securities or any interest or participation therein to be registered under
Section 5 of the Securities Act of 1933, as amended. The Company has not
authorized or appointed any person to act on its behalf in connection with the
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offering of the Securities. No broker or finder (other than Imperial Capital,
LLC) has acted for the Company in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder (other than Imperial
Capital, LLC) is entitled to any brokerage or finder's fees or other commission
in respect of such transaction based in any way on agreements, arrangements or
understandings made by or on behalf of the Company.
(j) No part of the proceeds from the sale of the Securities hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
"margin stock" within the meaning of Regulation G of the Board of Governors of
the Federal Reserve System (12 CFR 207), or for the purpose of buying or
carrying or trading in any securities under such circumstances as to involve the
Company in a violation of Regulation X of said Board (12 CFR 224) or to involve
any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
The assets of the Company do not include any margin stock, and the Company does
not have any present intention of acquiring any margin stock.
(k) The Company is not an investment company subject to registration
under the Investment Company Act of 1940, as amended.
(l) At Closing, Siena shall acquire good and marketable title to the
Securities free and clear of all covenants, conditions, restrictions, liens,
pledges, charges, encumbrances, options and adverse claims or rights of any kind
whatsoever.
(m) Except for Indebtedness incurred in the ordinary course of
business not in excess of US$10,000 in the aggregate or as otherwise disclosed
in Schedule 1.5(m), the Company has no outstanding Indebtedness of any kind
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(including contingent obligations, tax assessments and unusual forward or long-
term commitments). For purposes of this Agreement, "Indebtedness" shall mean any
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obligation for borrowed money (other than the Company's obligations to Siena in
connection herewith), including without limitation (A) any obligation owed for
all or any part of the purchase price of property, services or other assets or
for the cost of property or other assets constructed or of improvements thereto,
(B) accounts payable included in current liabilities outstanding for more than
one hundred twenty (120) days and incurred in respect of property purchased in
the ordinary course of business, (C) any obligations secured by any lien in
respect of property even though the person owning the property has not assumed
or become liable for the payment of such obligation, (D) any guarantee with
respect to any of the foregoing indebtedness of another person, and (E)
obligations in respect of letters of credit.
(n) Except as set forth in Schedule 1.5(f) hereto, there are no
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material (i) actions, suits or legal, equitable, arbitrative or administrative
proceedings pending, or to the knowledge of the Company, threatened against the
Company and (ii) judgements, injunctions, writs, rulings or orders by any
Governmental Person against the Company or its directors or officers.
Section 2 CONDITIONS TO OBLIGATIONS OF SIENA. The obligation of Siena to
purchase and pay for the Securities on the Closing Date shall be subject to the
satisfaction on or before the Closing Date of the conditions hereinafter set
forth:
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Section 2.1 Proceedings Satisfactory. All proceedings taken on or prior to
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the Closing Date in connection with the issuance of the Securities and the
consummation of the transactions contemplated hereby and all documents and
papers relating thereto shall be satisfactory in form and substance to Siena and
its counsel.
Section 2.2 Representations True. All representations and warranties of the
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Company contained herein shall be true and correct in all respects on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date; the Company shall have
performed in all respects all agreements on its part required to be performed
under this Agreement on or prior to the Closing Date; and no Event of Default
(as hereinafter defined) shall have occurred and be continuing on and as of the
Closing Date.
Section 2.3 The Purchase by Siena Permitted by Applicable Laws. The sale
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by the Company and the payment for the Securities to be purchased by Siena (i)
shall not be prohibited by any applicable law or governmental regulation,
release, interpretation or opinion, (ii) shall not subject Siena to any penalty
under or pursuant to any applicable law or governmental regulation, and (iii)
shall be permitted by the laws and regulations of the jurisdictions to which
Siena is subject.
Section 2.4 Payment of Finance Fee. Concurrently with the Closing, the
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Company shall have paid to Siena the Finance Fee and all other amounts required
to be paid by the Company pursuant to Section 3.16 hereof.
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Section 2.5 Execution and Delivery of Documents. Siena shall have received
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the following at its offices, duly executed and delivered and in form and
substance satisfactory to Siena and its counsel: the Note, the Warrants and the
Warrant Agreement, and such other documents and information as Siena may
reasonably request in connection herewith, including without limitation, an
Omnibus Certificate, substantially in the form of Exhibit C hereto and a
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Guarantee and Pledge in the form of Exhibit D hereto. The Omnibus Certificate
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together with this Agreement, the Note, the Warrant Agreement, the Warrants and
the Guarantee and Pledge are sometimes collectively referred to herein as the
"Loan Documents."
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Section 3 COVENANTS. The Company covenants and agrees that on and after the
date hereof, so long as the Note shall be outstanding:
Section 3.1 Payment of the Note. The Company shall pay the principal of and
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interest on the Note on the dates and in the manner provided in the Note and
this Agreement. The obligation of the Company described in the preceding
sentence is absolute and unconditional, irrespective of any tax or accounting
treatment of such obligation including without limitation any documentary stamp,
transfer, ad valorem or other taxes assessed by any jurisdiction in connection
with this transaction.
Section 3.2 Stay, Extension and Usury Laws. The Company agrees (to the
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extent it may lawfully do so) that it will not at any time insist upon, plead or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company from paying all or a portion of the principal
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of, Finance Fee, or interest on the Note as contemplated herein, wherever
enacted, now or at any time hereinafter in force, or that may materially affect
the covenants or the performance of this Agreement in any manner inconsistent
with the provisions of this Agreement. The Company expressly waives all benefit
or advantage of any such law. If a court of competent jurisdiction prescribes
that the Company may not waive its rights to take the benefit or advantage of
any stay or extension law or any usury law or other law in accordance with the
prior sentence, then the obligation to pay interest on the Note shall be reduced
to the maximum legal limit under applicable law governing the interest payable
in connection with the Note, and any amount of interest paid by the Company that
is deemed illegal shall be deemed to have been a prepayment of principal on the
Note.
Section 3.3 Corporate Existence. The Company will do or cause to be done
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all things necessary to preserve and keep in full force and effect its corporate
existence, as the case may be, in accordance with the rights (charter and
statutory), licenses and franchises of the Company.
Section 3.4 Taxes. The Company shall pay prior to delinquency all taxes,
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assessments and governmental levies that may be imposed upon the Company, except
as contested in good faith and by appropriate proceedings.
Section 3.5 Limitations on Indebtedness. Without Siena's prior written
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consent, which consent may not be unreasonably withheld or denied, and except as
permitted under the Nomura Agreement, the Company shall not, directly or
indirectly, create, incur, assume, suffer to exist or otherwise in any manner
become liable or commit to become liable for any Indebtedness other than the
Company's obligations to Siena in connection herewith and Indebtedness incurred
in the ordinary course of business not in excess of US$10,000 in the aggregate.
Notwithstanding the foregoing, should Siena consent to the Company's incurring
of any Indebtedness (other than Indebtedness described in the immediately
preceding sentence) and subject to the provisions of the Nomura Agreement, the
net proceeds of such Indebtedness shall be applied as a mandatory prepayment of
principal of the Note in accordance with Section 1.3(e) hereof.
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Section 3.6 Limitations on Liens. The Company shall not directly or
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indirectly, create, incur, assume or permit to exist or otherwise cause or
permit to become effective any mortgage, lien, pledge, charge, security interest
or other encumbrance in or on, or any interest or title of any vendor, lessor,
lender or other secured party to or of the Company under any conditional sale or
other title retention agreement or capital lease with respect to, any property
or asset of the Company, or the signing or filing of a financing statement that
names the Company as debtor, or the signing of any security agreement
authorizing any other party as the secured party thereunder to file any
financing statement (collectively, a "Lien"), other than Liens created in
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connection with, or permitted under, the Nomura Agreement or otherwise approved
in writing by Siena.
Section 3.7 Intentionally deleted.
Section 3.8 Limitations on Transactions with Affiliates. The Company shall
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not make any payment to or investment in, or enter into any transaction with,
any Affiliate, including without limitation the purchase, sale or exchange of
property or the rendering of any service, except transactions entered into with
Affiliates (I) which are permitted under the Nomura Agreement or (II) (a) in the
ordinary course of business, (b) on terms and conditions substantially similar
to those that
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the Company would have received in an "arm's length" transaction with a third
party and (c) related to the Company's principal activities. For purposes of
this Agreement, "Affiliate" shall mean any other person controlling or
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controlled by or under common control with such specified person. For the
purposes of this definition, "control" when used with respect to any specified
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person means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
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meanings correlative to the foregoing.
Section 3.9 Change in Control. Except with Siena's written consent, the
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Company shall not merge or consolidate with or into, or sell, transfer, lease or
convey all or substantially all of its assets to, any person or into another
corporation or entity, or otherwise permit any person or group to acquire direct
or indirect beneficial ownership of 50% or more of the outstanding Common Stock.
Section 3.10 Maintenance of Properties. The Company shall maintain,
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preserve, protect and keep its properties in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times consistent with past practices
of the Company.
Section 3.11 Maintenance of Insurance. The Company shall maintain insurance
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with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general areas in
which the Company operates.
Section 3.12 Sale of Assets. Except as permitted by the Nomura Agreement,
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the Company shall not sell, lease, transfer or dispose of any of its interest in
its respective properties or assets, whether real, personal or mixed, or
tangible or intangible, other than in the ordinary course of business consistent
with prudent business practice (which includes the disposition in a commercially
reasonable manner of equipment and inventory that is obsolete).
Section 3.13 Repurchase of Securities. Except with Siena's written consent,
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the Company shall not repurchase or otherwise acquire or retire any of its
capital stock or other equity securities or obligation evidencing the right of
any holder thereof to purchase any of its capital stock or other securities in
an aggregate amount in excess of US$10,000.00.
Section 3.14 Reporting; Inspection. On the last day of each month
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commencing with September 30, 1999, the Company shall provide to Siena a written
certificate signed by the Company's President, containing the following: (a)
copies of all reports and other written information which the Company delivers
to its securityholders during such month; (b) copies of all of the Company's
internally prepared balance sheets, profit and loss statements and cash flow
statements for such month, all prepared in conformity with generally accepted
accounting principles except for the absence of footnotes and for regularly
recurring periodic adjustments; (c) copies of any other material submissions to
any Governmental Persons during such month; and (d) such other information as
Siena may reasonably request from time to time, including without limitation the
ability to communicate orally and in writing with officers and directors of the
Company. In addition,
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Siena shall have the right to inspect the Company's properties and to examine
its books and records, all at reasonable times and upon reasonable notice to the
Company.
Section 3.15 Compliance with Laws. The Company shall comply in all respects
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with all applicable laws, statutes and regulations of any Governmental Person, a
violation of which would have a material adverse effect on the financial
condition, operations, business, profits, prospects or properties of the Company
or the validity or enforceability of this Agreement, the Securities or any other
documents or agreements contemplated hereby or thereby or any of the
transactions contemplated hereby or thereby.
Section 3.16 Payment of Expenses. Whether or not the transactions
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contemplated by this Agreement are consummated, the Company shall promptly pay
to Siena all reasonable costs and out-of-pocket expenses of Siena, including
without limitation its reasonable attorneys' fees and the Finance Fee, incurred
in connection with the negotiation, preparation, execution and delivery of this
Agreement and the Securities, any administration costs in connection therewith,
and defense or enforcement costs related thereto. On the Closing Date, the
Company shall pay the Finance Fee to Siena and all reasonable costs and
out-of-pocket expenses of Siena, including, without limitation, the reasonable
fees, office charges and expenses of Nida & Maloney, counsel to Siena, by
directing Siena to pay itself and such entities on the Closing Date out of the
Purchase Price.
Section 4 EVENTS OF DEFAULT; REMEDIES.
Section 4.1 Events of Default Defined; Acceleration of Maturity. If any of
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the following events ("Events of Default") shall occur and be continuing (for
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any reason whatsoever and whether it shall be voluntary or involuntary or by
operation of law or otherwise):
A. default shall be made in the payment of the principal of, or interest
on, the Note when and as the same shall become due and payable, whether at
stated maturity, by acceleration, upon a mandatory prepayment due date or
otherwise; or
B. default shall be made in the performance or observance of any covenant,
agreement or condition contained herein or in any of the other Loan Documents,
and such default shall have continued for a period of five (5) Business Days; or
C. default shall be made in the performance or observance of any covenant,
agreement or condition contained in the Nomura Agreement and such default shall
have resulted in an acceleration of the obligations under the Nomura Agreement;
or
D. the Company shall (1) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property and assets, (2) be generally
unable to pay its debts as such debts become due, (3) make a general assignment
for the benefit of its creditors, (4) commence a voluntary case under the United
States Bankruptcy Code or similar law or regulation (as now or hereafter in
effect), (5) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (6) fail to controvert in a timely or
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under such Bankruptcy Code or other law or regulation, (7)
dissolve, (8) take
10
any corporate action under any applicable law analogous to any of the foregoing,
or (9) take any corporate action for the purpose of effecting any of the
foregoing; or
E. a proceeding or case shall be commenced, without the application or
consent of the Company in any court of competent jurisdiction, seeking (1) the
liquidation, reorganization, dissolution, winding up or composition or
readjustment of its debts, (2) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or for all or any substantial part of
its assets, or (3) similar relief in respect of the Company, under any law
providing for the relief of debtors, and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of sixty (60) days; or an
order for relief shall be entered in an involuntary case under the United States
Bankruptcy Code or other similar law or regulation, against the Company; or
action under the laws of any jurisdiction affecting the Company analogous to any
of the foregoing shall be taken with respect to the Company and shall continue
unstayed and in effect for any period of sixty (60) days; or
F. final judgment for the payment of money shall be rendered by a court of
competent jurisdiction against the Company and the Company shall not discharge
the same or provide for its discharge in accordance with its terms, or procure a
stay of execution thereof within sixty (60) days from the date of entry thereof
and within said period of sixty (60) days, or such longer period during which
execution of such judgment shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal, and such judgment
together with all other such judgments shall exceed in the aggregate US$50,000;
or
G. any representation or warranty made by the Company in this Agreement, or
any other documents or agreements contemplated hereby and thereby or in any
certificate or other instrument delivered hereunder or pursuant hereto or in
connection with any provision hereof shall be false or incorrect in any material
respect on the date as of which made;
then (x) upon the occurrence of any Event of Default described in subsection D
------------
or E, the unpaid principal amount of the Note, together with the interest
- ----
accrued thereon and all other amounts payable by the Company hereunder, shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by the Company or (y) upon the occurrence of any other Event of Default,
Siena may, by notice to the Company, declare the unpaid principal amount of the
Note to be, and the same shall forthwith become, due and payable, together with
the interest accrued thereon and all other amounts payable by the Company
hereunder.
Section 4.2 Suits for Enforcement. If any Event of Default shall have
---------------------
occurred and be continuing, Siena may proceed to protect and enforce its rights
against the Company, either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the exercise of any power granted in this Agreement,
or Siena may proceed to enforce the payment by the Company of all sums due upon
the Note or to enforce any other legal or equitable right of Siena.
The Company covenants that, if it shall default in the making of any
payment due under the Note or in the performance or observance of any agreement
contained in this Agreement, it will pay to Siena such further amounts, to the
extent lawful, to cover any reasonable costs and
11
expenses of collection or of otherwise enforcing Siena's rights, including
without limitation the reasonable counsel fees and costs and expenses incurred
in connection with any restructuring, negotiation, refinancing, workout,
bankruptcy or other similar transaction or proceeding. The obligations set forth
in this paragraph shall survive the payment in full of the Note.
Section 4.3 Remedies Cumulative. No remedy herein conferred upon Siena is
-------------------
intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
Section 4.4 Remedies Not Waived. No course of dealing between the Company
-------------------
and any other person and no delay or failure in exercising any rights hereunder
or under the Note in respect thereof shall operate as a waiver of Siena's
rights.
Section 5 TAXES.
The Company will pay all taxes (including interest and penalties), other
than taxes imposed on the income of Siena, which may be payable in respect of
the execution and delivery of this Agreement or of the execution and delivery
(but not the transfer) of any of the Securities or of any amendment of, or
waiver or consent under or with respect to, this Agreement or of any of the
Securities and will save Siena and all subsequent holders of the Securities
harmless against any loss or liability resulting from nonpayment or delay in
payment of any such tax. The obligations of the Company under this Section shall
survive the payment of the Note.
Section 6 MISCELLANEOUS.
Section 6.1 Indemnification. The Company agrees to indemnify, defend and
---------------
hold harmless Siena and its successors, assigns, heirs, subsidiaries, Affiliates
and all of the officers, directors, employees, partners and agents (including
attorneys and accountants) of each of the aforementioned persons or entities,
and each of them, from and against any and all losses, claims, damages,
liabilities, expenses, demands, causes of action, suits, debts, obligations,
rights, promises, acts, agreements and damages of any kind or nature whatsoever,
whether at law or in equity, whether known or unknown, foreseen or unforeseen,
heretofore or hereafter arising out of, relating to, connected with or
incidental to the failure of any representation or warranty made by the Company
or in any other documents or agreements contemplated hereby or the failure of
the Company to comply in all material respects with the covenants contained in
this Agreement or in any other documents or agreements contemplated hereby. The
indemnification set forth herein shall in no way limit, impair or otherwise have
any effect on the indemnification provisions set forth in any agreement between
Imperial Capital, LLC and the Company.
Section 6.2 Reliance on and Survival of Representations. All
-------------------------------------------
representations, warranties, covenants and agreements of the Company herein
shall be deemed to be material and to have been relied upon by Siena and shall
survive the execution and delivery of this Agreement and of the Securities, for
so long as the Note remains outstanding.
12
Section 6.3 Successors and Assigns. This Agreement shall bind and inure to
----------------------
the benefit of and be enforceable by the Company, Siena and each of their
respective successors and assigns, and, in addition, shall inure to the benefit
of and be enforceable by each person who shall from time to time be a holder of
the Note. Siena shall be permitted to transfer the Securities in accordance with
their terms and in accordance with applicable restrictions under applicable
federal and state securities laws.
Section 6.4 Notices. All notices and other communications provided for in
-------
this Agreement shall be in writing and delivered by registered or certified
mail, postage prepaid, or delivered by overnight courier (for next Business Day
delivery) or telecopied, addressed as follows, or at such other address as any
of the parties hereto may hereafter designate by notice to the other parties
given in accordance with this Section:
-------
1) if to the Company or the Shareholders:
Paisano Publications, Inc.
28210 Dorothy Drive
Agoura Hills, CA 91301
Attn: J. Robert Fabregas
Telephone: 818-889-8740
Telecopier: 818-889-4726
2) if to Siena:
Siena Capital Partners, L.P.
150 South Rodeo Drive, Suite 100
Beverly Hills, California 90212
Attn: Christopher P. Shepard
Telephone: (310) 246-3700
Telecopy: (310) 246-3672
With a copy of any notice to:
Nida & Maloney, LLP
800 Anacapa Street
Santa Barbara, California 93101
Attn: C. Thomas Hopkins, Esq.
Telephone: (805) 568-1151
Telecopy: (805) 568-1955
Any such notice or communication shall be deemed to have been duly given on
the fifth day after being so mailed, the next Business Day after delivery by
overnight courier, when received when sent by telecopy or upon receipt when
delivered personally.
Section 6.5 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one
13
and the same instrument. Signatures may be exchanged by telecopy, with original
signatures to follow. Each of the parties hereto agrees that it will be bound by
its own telecopied signature and that it accepts the telecopied signatures of
the other parties to this Agreement. The original signature pages shall be
forwarded to Siena or its counsel and Siena or its counsel will provide all of
the parties hereto with a copy of the entire Agreement.
Section 6.6 Amendments. This Agreement may only be amended by a writing
----------
duly executed by the parties hereto.
Section 6.7 Severability. If any term or provision of this Agreement or any
------------
other document executed in connection herewith shall be determined to be illegal
or unenforceable, all other terms and provisions hereof and thereof shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
Section 6.8 Governing Law; Submission to Process. EXCEPT TO THE EXTENT THAT
------------------------------------
THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY SELECTED IN A DOCUMENT OR SECURITY,
THIS AGREEMENT AND THE SECURITIES AND ALL AMENDMENTS, SUPPLEMENTS, WAIVERS AND
CONSENTS RELATING HERETO OR THERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS ITSELF TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE STATE
OF CALIFORNIA AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON
IT IN ANY LEGAL PROCEEDINGS RELATING HERETO BY ANY MEANS ALLOWED UNDER
CALIFORNIA OR FEDERAL LAW. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY SHALL APPOINT AN AGENT FOR SERVICE OF PROCESS IN
CALIFORNIA AND SHALL NOTIFY SIENA OF ANY FUTURE CHANGE THEREIN.
Section 6.9 Entire Agreement. This Agreement contains the entire Agreement
----------------
of the parties hereto with respect to the transactions contemplated hereby and
supersedes all previous oral and written, and all previous contemporaneous oral
negotiations, commitments and understandings.
Section 6.10 Further Assurances. The Company agrees promptly to execute and
------------------
deliver such documents and to take such other acts as are reasonably necessary
to effectuate the purposes of this Agreement.
Section 6.11 Headings. The headings contained herein are for reference
--------
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
14
Section 6.12 Waiver of Jury Trial. THE COMPANY AND SIENA EACH HEREBY AGREE
--------------------
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE SECURITIES OR ANY OTHER
AGREEMENTS RELATING TO THE SECURITIES OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS TRANSACTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE SECURITIES OR ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE SECURITIES.
Section 6.13 Assignments and Participations; Right of First Refusal;
-------------------------------------------------------
Repurchase Right. The Company may not assign its rights or obligations hereunder
- ----------------
or under the Note without the prior written consent of Siena. Siena may assign
all or any portion of the Note or other Securities without the prior consent of
the Company or Easyriders. Siena may sell or agree to sell to one or more other
persons a participation in all or any part of any of the Note or other
Securities without the prior consent of the Company or Easyriders. Upon
surrender of the Note or other Securities, the Company or Easyriders shall
execute and deliver one or more substitute notes, warrants or other securities
in such denominations and of a like aggregate unpaid principal amount or other
amount issued to Siena and/or to Siena's designated transferee or transferees.
Siena may furnish any information in the possession of Siena concerning the
Company or Easyriders, or any of its respective subsidiaries, from time to time
to assignees and participants (including prospective assignees and
participants). In the event Siena proposes to sell or otherwise transfer the
Note (except for the sale of participating interests in the Note) or receives a
bona-fide offer from any third party to purchase the Note which Siena elects to
accept then Siena shall give written notice to Joseph Teresi and John Martin
(collectively, the "Shareholders") of its intention to transfer (the "Sale
------------ ----
Notice"). In such event, the Shareholders shall have the right, but not the
- ------
obligation, to purchase the Note by paying to Siena all outstanding principal
and all accrued and unpaid interest of the Note (the "Purchase Amount"). The
---------------
Shareholders shall deliver to Siena within five (5) Business Days after receipt
of the Sale Notice from the Secretary, a written election (the "Purchase
--------
Notice") to purchase the Note along with immediately available funds in an
- ------
amount equal to the Purchase Amount. The Shareholders shall also have the right,
at any time while the Note is outstanding, to purchase the Note by delivering to
Siena a Purchase Notice and immediately available funds in an amount equal to
the Purchase Amount.
[Signature page to follow.]
15
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the date
first set forth above.
SIENA:
SIENA CAPITAL PARTNERS, L.P.,
a California limited partnership
By: Charleville Capital, L.P.,
a California limited partnership,
its general partner
By: Aneis Advisors, Inc.,
a California corporation,
its general partner
By: /s/ Chris Shepard
___________________________
Name: Chris Shepard
Title: V.P.-Secretary
THE COMPANY:
PAISANO PUBLICATIONS, INC.,
a California corporation
By: /s/ J. Robert Fabregas
_______________________________
Name: J. Robert Fabregas
Title: Secretary
16
Exhibit A
FORM OF NOTE
17
Exhibit B
FORM OF WARRANT AGREEMENT
18
Exhibit C
OMNIBUS CERTIFICATE
19
Omnibus Certificate
-------------------
I, J. Robert Fabregas, do hereby certify that I am the duly appointed,
qualified and acting Secretary of Paisano Publications, Inc. (the
"Corporation"), and that, in such capacity, I am authorized to certify on behalf
of the Corporation to Siena Capital Partners, L.P. ("Siena"), in connection with
that certain Securities Purchase Agreement dated as of October 14, 1999, (the
"Agreement"), by and among the Corporation and Siena, that:
1. Attached hereto as Exhibit A are true, correct and complete copies of
---------
the Articles of Incorporation of the Corporation, and all amendments
thereto, certified by the Secretary of State of the State of
California, and as in effect on the date hereof.
2. Attached hereto as Exhibit B are true, correct and complete copies of
---------
the Bylaws of the Corporation as in effect on the date hereof.
3. Attached hereto as Exhibit C are true, correct and complete copies of
---------
the resolutions, adopted by unanimous written consent of the Board of
Directors of the Corporation, approving the Agreement and the
transactions contemplated therein, authorizing the execution,
delivery and performance by the Corporation of the Agreement to which
it is a party and the consummation of the transactions contemplated
therein, which resolutions have not been revoked, modified, amended
or rescinded and are still in full force and effect on the date
hereof.
4. The below-named persons or entities have been duly elected and
qualified and on October 14, 1999 were and at all time subsequent
thereto, including the date hereof, have been officers of the
Corporation, holding the offices indicated opposite their respective
names.
Name Office
- ---- ------
William E. Prather President
J. Robert Fabregas Executive Vice President, Secretary
Robert Davis Vice President, Treasurer, Chief Financial Officer
Rick Busman Senior Vice President - Publishing
Grady Pfeiffer Vice President - Sales
David Nichols Vice President - Media
Michael Weinglass Vice President - Manufacturing and Production
Richard Marzella Vice President - Circulation
Gilbert Luna Vice President - Associate Publisher
Page 1 of 2
DATED AND EFFECTIVE as of October 14, 1999.
------------------------------------
J. Robert Fabregas
Secretary
The undersigned hereby certifies that J. Robert Fabregas, who executed the
foregoing certificate is the duly elected Secretary of the Corporation, and the
signature set forth above his name is his genuine signature.
------------------------------------
Name: Robert Davis
Title: Vice President
Page 2 of 2
[STAMP]
E N D O R S E D
F I L E D
In the office of the Secretary of State
of the State of California
NOV 17 1970
H.P. SULLIVAN, Secretary of State
By JAMES E. HARRIS
Deputy
ARTICLES OF INCORPORATION
-------------------------
OF
PAISANO PUBLICATIONS, INC.
--------------------------
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily associated ourselves
together for the purpose of forming a corporation under the laws of the State of
California, and we do hereby certify:
I
The name of this corporation is PAISANO PUBLICATIONS, INC.
II
The purposes for which this corporation is formed are:
A. Primarily, to publish and distribute, at wholesale and retail,
magazines, periodicals, books, photographs and printed matter of every
description; and secondarily, as follows:
B. To carry on any business whatsoever which this corporation may deem
proper or convenient in connection with the foregoing purposes or otherwise, or
which may be calculated directly or indirectly to promote the interest of this
corporation, or to enhance the value of its property or business;
C. To borrow money; to lend money; to own real property; to own personal
property; to have and to exercise all the powers conferred by the laws of the
State of California upon corporations formed under the laws pursuant to and
under which this corporation is formed, as such laws are now in effect or may at
any time hereafter be enacted or amended;
D. To act as principal, agent, joint venturer, partner, or in any other
capacity which may be authorized, ratified or approved by the board of directors
of this corporation; and
E. To transact business in the State of California or in any other
jurisdiction of the United States of America or elsewhere in the world.
-1-
The foregoing statement of purposes shall be construed as a statement of
both purposes and powers, and the purposes and powers stated in each clause
shall, except where otherwise expressed, be in nowise limited or restricted by
reference to or inference from the terms or provisions of any other clause, but
shall be regarded as independent purposes.
III
The principal office for the transaction of the business of this
corporation is to be located in the County of Los Angeles, State of California.
IV
A. There shall be only one class of stock of this corporation, and the
total number of shares that the corporation shall have authority to issue is 500
shares; that the aggregate par value of all shares is $25,000.00, each share
having a par value of $50.00. Such shares may be issued from time to time for
such consideration as the directors from time to time determine.
B. Each shareholder or subscriber to shares of this corporation shall be
entitled to full pre-emptive or preferential rights, as such rights have been
heretofore defined at common law, to purchase and subscribe for his
proportionate part of any shares which may be issued at anytime by this
corporation.
C. Before there can be a valid sale or transfer of any of the shares of
this corporation by the holders thereof, the holder of the shares to be sold or
transferred shall first give notice in writing to the secretary of this
corporation of his intention to sell or transfer such shares. Said notice shall
specify the number of shares to be sold or transferred, the price per share, and
the terms upon which such holder intends to make such sale or transfer. The
secretary shall, within five days thereafter, mail or deliver a copy of said
notice to each of the other shareholders of record of this corporation. Within
thirty days after the mailing or delivering of said notices to such
shareholders, any such shareholder desiring to acquire any part or all of the
shares referred to in said notice shall deliver to the secretary a written offer
to purchase a specified number of such shares at the price and on terms stated
in said notice.
If the total number of shares specified in such offer exceeds the number
of shares referred to in said notice, each offering shareholder shall be
entitled to purchase such proportion of the shares in said notice, as the number
shares which he holds bears to the total number of shares held by all such
offering shareholders.
If all the shares in said notice are not disposed of under such
apportionment, each shareholder desiring to purchase
-2-
shares in excess of his proportionate share shall be entitled to purchase such
proportion of those remaining shares, as the total number of shares which he
holds bears to the total number of shares held by other offering shareholders
desirous of purchasing in excess of such apportionment.
If none or only a part of the shares in said notice is purchased as
aforesaid, within said thirty-day period, the shareholder desiring to sell or
transfer may dispose of all unpurchased shares to any person he may so desire;
provided that he shall not sell or transfer such shares, however, at a lower
price or on terms more favorable to the purchased or transferee than those
specified in said notice to the secretary.
Any sale or transfer, or purported sale or transfer, of the shares of this
corporation shall be null and void unless the terms, conditions and provisions
of this Article IV(C) are strictly observed and followed.
V
The number of the directors is three (3), and the names and addresses of
the persons who are appointed to act as the first directors of this corporation
are:
Louis Kimzey
301 Ocean
Seal Beach, California 90740
Joseph Teresi
2117 North Buena Vista
Burbank, California 91504
Milford C. Blair
2117 North Buena Vista
Burbank, California 91504
VI
Authority is hereby granted to the holders of shares of this corporation
untitled to vote, to change from time to time the authorized number of directors
of this corporation by a duly adopted amendment to the by-laws of this
corporation.
DATED: November, 11 1970
/s/ Louis Kimzey
------------------------------
LOUIS KIMZEY
/s/ Joseph Teresi
------------------------------
JOSEPH TERESI
/s/ Milford C. Blair
------------------------------
MILFORD C. BLAIR
-3-
STATE OF CALIFORNIA )
: ss.
COUNTY OF LOS ANGELES)
On October 26, 1970, before me, the undersigned, a Notary Public in and for
said county and state, personally appeared JOSEPH TERESI, known to me to be the
person whose name is subscribed to the foregoing Articles of Incorporation, and
acknowledged to me that he executed the same.
/s/ RUSSELL A. CANNON
--------------------------------------
Notary Public in and for
said county and state
- -----------------------------------
[SEAL] OFFICIAL SEAL
RUSSELL A. CANNON
NOTARY PUBLIC CALIFORNIA
PRINCIPAL OFFICE IN
SAN DIEGO COUNTY
MY COMMISSION EXPIRES JULY 7, 1974
- -----------------------------------
STATE OF CALIFORNIA )
: ss.
COUNTY OF LOS ANGELES)
On October 26, 1970, before me, the undersigned, a Notary Public in and for
said county and state, personally appeared MILFORD C. BLAIR, known to me to be
the person whose name is subscribed to the foregoing Articles of Incorporation,
and acknowledged to me that he executed the same.
/s/ RUSSELL A. CANNON
--------------------------------------
Notary Public in and for
said county and state
- -----------------------------------
[SEAL] OFFICIAL SEAL
RUSSELL A. CANNON
NOTARY PUBLIC CALIFORNIA
PRINCIPAL OFFICE IN
SAN DIEGO COUNTY
MY COMMISSION EXPIRES JULY 7, 1974
- -----------------------------------
-4-
STATE OF CALIFORNIA )
: ss.
COUNTY OF LOS ANGELES )
On November 11, 1970, before me, the undersigned,
a Notary Public in and for said county and state, personally
appeared LOUIS KIMZEY, known to me to be the person whose name
is subscribed to the foregoing Articles of Incorporation, and
acknowledged to me that he executed the same.
/s/ Gary M. Crane
--------------------------
Notary Public in and for
said county and state
=========================================
OFFICIAL SEAL
(SEAL) GARY M. CRANE
Notary Public - California
PRINCIPAL OFFICE IN
LOS ANGELES COUNTY
MY COMMISSION EXPIRES NOV. 29, 1971.
=========================================
[LOGO] State
of
California
OFFICE OF THE SECRETARY OF STATE
================================================================================
I, MARCH FONG EU, Secretary of State of the State of California, hereby
certify:
That the annexed transcript has been compared with the record on file in
this office, of which it purports to be a copy, and that same is full, true and
correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
MAY 19 1986
--------------------------
/s/ March Fong Eu
Secretary of State
[SEAL]
THE GREAT SEAL OF THE STATE OF
CALIFORNIA
Exhibit A
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
-----------------------------------------------------
OF PAISANO PUBLICATIONS, INC., A CALIFORNIA CORPORATION
-------------------------------------------------------
Joseph Teresi and Milford C. Blair declare that:
1. They are the duly elected and acting President and Treasurer,
respectively, of said Corporation.
2. The Articles of Incorporation of said Corporation should be amended by
revising Article V to read as follows:
"The number of the Directors is three (3)."
3. The foregoing amendment has been approved by the Board of Directors of
said Corporation.
4. The foregoing amendment was approved by the required vote of the
shareholders of said Corporation in accordance with ss.902 of the California
General Corporation Laws. The Corporation has only one class of shares. The
- ------------------------
total number of outstanding shares entitled to vote with respect to the
foregoing amendment was fifty (50) common shares. The number of shares voting in
favor of the foregoing amendment equaled or exceeded the vote required, such
required vote being a majority of the outstanding shares.
IN WITNESS WHEREOF, the undersigned have executed this certificate on
3-14-, 1986.
/s/ Joseph Teresi Pres.
-------------------------------
JOSEPH TERESI, President
/s/ Milford C. Blair
-------------------------------
MILFORD C. BLAIR, Treasurer
The undersigned, Joseph Teresi and Milford C. Blair, the President and
Treasurer respectively, of Paisano Publications, Inc., each declares under
penalty of perjury that the matters set out in the foregoing certificate are
true of his own knowledge.
Executed at Agoura Hills, California on 3-14-, 1986.
/s/ Joseph Teresi Pres.
-------------------------------
JOSEPH TERESI, President
/s/ Milford C. Blair
-------------------------------
MILFORD C. BLAIR, Treasurer
[STAMP]
E N D O R S E D
F I L E D
In the office of the Secretary of State
of the State of California
MAY 8 1986
MARCH FONG EU, Secretary of State
[LOGO] State
of
California
OFFICE OF THE SECRETARY OF STATE
================================================================================
I, MARCH FONG EU, Secretary of State of the State of California, hereby
certify:
That the annexed transcript has been compared with the record on file in
this office, of which it purports to be a copy, and that same is full, true and
correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
MAR 16 1986
------------------------
/s/ March Fong Eu
Secretary of State
[SEAL]
THE GREAT SEAL OF THE STATE OF
CALIFORNIA
[STAMP]
E N D O R S E D
F I L E D
In the office of the Secretary of State
of the State of California
MAR 7 - 1983
MARCH FONG EU, Secretary of State
By JAMES E. HARRIS
Deputy
CERTIFICATE OF AMENDMENT OF ARTICLES OF
---------------------------------------
INCORPORATION OF PAISANO PUBLICATIONS INC.
------------------------------------------
LOUIS KIMZEY and JOSEPH TERESI certify that:
1. They are the President and the Secretary of PAISANO PUBLICATIONS, INC.,
a California corporation.
Article V of the Articles of Incorporation of said corporation shall
be amended to read in full as follows:
"The number of directors is two (2)."
2. The amendment has been approved by the Board of Directors.
The amendment has been approved by the required vote of the
shareholders in accordance with Section 902 of the California Corporations Code.
The corporation has only one class of shares. Each outstanding share is entitled
to one vote. There are only 2 shareholders. The corporation has fifty (50)
shares outstanding and, hence, the total number of shares entitled to vote with
respect to the amendment was fifty (50). The number of shares voting in favor of
the amendment exceeded the vote required, in that the affirmative vote of 83-1/3
per cent of the outstanding shares was required for approval of the amendment
and the amendment was approved by the affirmative vote of fifty (50) shares or
100 per cent of the outstanding voting shares.
/s/ Louis Kimzey
------------------------------------
LOUIS KIMZEY
President
/s/ Joseph Teresi
------------------------------------
JOSEPH TERESI
Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing certificate
are true and correct of his own knowledge and that this Declaration was executed
on this 14 day of Jan, 1983, at Monrovia, California.
/s/ Louis Kimzey
------------------------------------
LOUIS KIMZEY
/s/ Joseph Teresi
------------------------------------
JOSEPH TERESI
2.
EXHIBIT 10.67
BY-LAWS
OF
PAISANO PUBLICATIONS, INC.
--------------------------
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the corporation is hereby fixed and located at 261 Latigo Canyon Road, City of
Malibu, State of California. The Board of Directors is hereby granted full power
and authority to change said principal executive office from one location to
another. The location of the principal executive office of the corporation need
not be in the State of California.
Section 2. OTHER OFFICES. Branch or subordinate offices may at any time be
established by the Board of Directors at any place or places.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of shareholders shall be held
either at the principal executive office or at any other place within or without
the State of California which may be designated either by the Board of Directors
pursuant to authority hereinafter granted to said Board, or by written consent
of all shareholders entitled to vote thereat, given either before or after the
meeting, filed with the Secretary of the corporation.
Section 2. ANNUAL MEETINGS. The annual meetings of shareholders, commencing
with the meeting to be held in 1982, shall be held at 10:00 o'clock A.M. on the
5th of January if not a legal holiday, and if a legal holiday, then on the next
business day following which is not a legal holiday, or at such other time and
date as may be designated by the Board of Directors. At such meeting the
shareholders shall elect a Board of Directors in accordance with the provisions
of Article II, Section 6 of the By-Laws, and transact such other business as
may properly be brought before the meeting.
-1-
Written notice of each annual meeting shall be given to each shareholder
entitled to vote thereat, either personally or by mail or other means of written
communication, charges prepaid, addressed to such shareholder at his or her
address appearing on the books of the corporation or given by him or her to the
corporation for the purpose of notice. If any notice or report addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation is returned to the corporation by the United States Postal Service
marked to indicate that the United States Postal Service is unable to deliver
the notice or report to the shareholder at such address, all future notices or
reports shall be deemed to have been duly given without further mailing if the
same shall be available to the shareholder upon written demand of the
shareholder at the principal executive office of the corporation for a period of
one year from the date of the giving of the notice or report to all other
shareholders. If a shareholder gives no address, notice shall be deemed to have
been given him or her if sent by mail or other means of written communication
addressed to the place where the principal executive office of the corporation
is situated, or if published at least once in some newspaper of general
circulation in the county in which said office is located.
All such notices shall be given to each shareholder entitled thereto not
less than ten (10) days nor more than sixty (60) days before each annual
meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of written
communication.
Such notices 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
-2-
reorganization of the corporation as defined in Section 181 of the
California General Corporations Law, (iv) voluntary dissolution of the
corporation, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, if any; and
(e) such other matters, if any, as may be expressly required by
statute.
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 holders of shares
entitled to cast not less than ten percent (10%) of the votes at the meeting.
Upon request in writing directed to the Chairman of the Board, President, Vice
President or Secretary by any person (other than the Board) entitled to call a
special meeting of shareholders, such 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 (35) nor more than sixty (60) days after receipt of the request. If the
notice is not given within twenty (20) days after receipt of the request, the
persons entitled to call the meeting may give the notice. Except in cases where
other express provision is made by statute, notice of such special meeting shall
be given in the same manner as required for annual meetings of shareholders. In
addition to the matters required by items (a) and, if applicable, (c) of Section
2 above, notice of any special meeting shall specify the general nature of the
business to be transacted, and no other business may be transacted at such
meeting.
Section 4. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders' meeting,
annual or special, whether or not a quorum is present, may be adjourned from
time to time by vote of a majority of the shares, the holders of which are
either present in person or by proxy thereat, but in the absence of a quorum
(except as provided in Section 7 below), no other business may be transacted at
any such meeting.
When any shareholders' meeting, either annual or special, is adjourned for
forty-five (45) days or more, or if after adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given as in
the case of an original meeting. Except as provided above, it shall not be
necessary to give any
-3-
notice of the time and place of the adjourned meeting or of the business to be
transacted thereat, other than by announcement of the time and place thereof at
the meeting at which such adjournment is taken.
Section 5. AFFIDAVIT OF MAILING. Whenever any shareholder entitled to vote
has been absent from any meeting of shareholders, whether annual or special, an
entry in the minutes to the effect that notice has been duly given shall be
sufficient evidence that due notice of such meeting was given to such
shareholder as required by law and the By-Laws of the corporation.
Section 6. VOTING.
(a) Generally: The shareholders entitled to notice of any meeting or to
---------
vote at any such meeting shall be only persons in whose name shares stand on
the stock records of the corporation on the record date determined in
accordance with Section 1 of ARTICLE VI.
(b) Ballots: Such vote may be viva voce or by ballot; provided, however,
------- ---- ----
upon demand made by a shareholder at any election and before the voting
begins, all elections for directors must be by ballot.
(c) Action by Majority: 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 California General Corporations Law or the Articles of
Incorporation.
(d) Cumulative Voting: Subject to the requirements hereinbelow provided,
-----------------
every shareholder entitled to vote at any election for directors shall have
the right to cumulate such shareholder's votes and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the
number of votes to which the shareholder's shares are entitled, or to
distribute the shareholder's votes on the same principle among as many
candidates as he shall think fit. No shareholder shall be entitled to cumulate
votes unless the name of the candidate or candidates for whom such votes would
be cast has been placed in nomination prior to the voting and the shareholder
has
-4-
given notice at the meeting prior to the voting, of the shareholder's
intention to cumulate their votes. If any one shareholder has given such
notice, all shareholders may cumulate their votes for candidates in
nomination. The candidates receiving the highest number of votes of shares
entitled to be voted for them, up to the number of directors to be elected,
shall be elected.
Section 7. QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting shall constitute a quorum
for the transaction of business. 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. CONSENT OF ABSENTEES. The transactions of any meeting of
shareholders, either annual or special, however called and noticed, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum is 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 transaction of any business because the meeting was not lawfully
called or convened, or to particular 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. Except as provided in Sections 601(e) and 601(f) of the California
General Corporations Law, the business transacted at the meeting need not be
specified in a written waiver of notice by a shareholder, in a consent to the
holding of the meeting by a shareholder or in an approval of the minutes of the
meeting by a shareholder. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
Section 9. ACTION WITHOUT MEETING.
(a) Election of Directors by Written Consent: Directors may be elected
----------------------------------------
without a meeting by a consent in writing, setting forth the actions so taken,
signed by all the persons who would We entitled to vote for the election of
directors. A director may be elected
-5-
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.
(b) Other Actions by Written Consent: Any other action which, under
--------------------------------
any provision of the California General Corporations Law, 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.
(c) Notice of Action by Written Consent: If the consents of all
-----------------------------------
shareholders entitled to vote have not been solicited in writing, and if
the unanimous written consent of all such shareholders shall not have been
received, the secretary shall give prompt notice of the corporate action
approved by the shareholders without a meeting. This notice shall be given
in the manner specified in Section 2 of this ARTICLE II. In the case of
approval of (i) contracts or transactions in which a director has a direct
or indirect financial interest, pursuant to Section 310 of the Corporations
Code of California, (ii) indemnification of agents of the corporation,
pursuant to Section 317 of that Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of that Code, and (iv) a distribution
in dissolution other than in accordance with the rights of outstanding
preferred shares, pursuant to Section 2007 of that Code, the notice shall
be given at least ten (10) days before the consummation of any action
authorized by that approval.
(d) Record Date: Unless, as provided in Section 1 of Article VI of
-----------
these By-Laws, the Board of Directors has fixed a record date for the
determination of shareholders entitled to notice of and to give such
written consent, the record date for such determination shall be the day on
which the first written consent is given. All such written consents shall
be filed with the secretary of the corporation.
(e) Revocation of Written Consent: Any shareholder giving a written
-----------------------------
consent, or the shareholder's proxy holders, or a transferee of the shares
or a
-6-
personal representative of the shareholder or their respective proxy
holders, may revoke the consent by a writing received by the corporation
prior to the time that written consents of the number of shares required to
authorize the proposed action has been filed with the secretary of the
corporation, but may not do so thereafter. Such revocation is effective
upon its receipt by the secretary of the corporation.
(f) Form of Written Consent: The form of written consent shall be
-----------------------
governed by the provisions of Section 604 of the California Corporations
Law where applicable.
Section 10. 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 his 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) a
subsequent proxy is executed by the person executing the prior proxy and is
presented to the meeting, (iii) the person executing the proxy attends the
meeting and votes in person, or (iv) 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. Notwithstanding the foregoing, a proxy may be made
irrevocable pursuant to the provisions of Section 705(e) of the California
General Corporations Law. The form of proxy shall be governed by the provisions
of Section 604 of the California General Corporations Law, where applicable.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. If inspectors of election are not so appointed, the chairman of any
such meeting may, and on the request of any shareholder or his proxy shall, make
such appointment at the meeting. The number of inspectors shall be either one
(1) or three (3). If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in person or by
proxy shall determine whether one (1) or three (3) inspectors are to be
appointed.
-7-
In case any person appointed as inspector fails to appear or fails or refuses to
act, the vacancy may, and on the request of any shareholder or a shareholder's
proxy shall, be filled by appointment by the Board of Directors in advance of
the meeting, or at the meeting by the chairman of the meeting.
The duties of such inspectors shall be as prescribed in Section 707(b) of
the California General Corporations Law and shall include: determining the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies; receiving votes, ballots or consents; hearing
and determining all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes or consents;
determining when the polls shall close; determining the result; and such acts as
may be proper to conduct the election or vote with fairness to all shareholders.
In the determination of the validity and effect of proxies, the dates contained
on the forms of proxies shall presumptively determine the order of execution of
the proxies, regardless of the postmarked dates on the envelopes in which they
are mailed.
The inspectors of election shall perform their duties impartially, in good
faith, to the best of their ability and as expeditiously as is practical. If
there are three (3) inspectors of election, the decision, act or certificate of
a majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima facie
evidence of the facts stated herein.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to any limitations in the Articles of
Incorporation and the California General Corporations Law relating to action
requiring shareholder approval, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board of Directors. The Board of Directors may delegate the
management of the day-to-day operation of the business of the corporation to a
management company or other person, provided that the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised
under the ultimate direction of the Board of Directors. Without prejudice to
such general powers, but subject to the same limitatons, it is hereby
-8-
expressly declared that the Board shall have the following powers in addition to
the other powers enumerated in these By-Laws:
(a) To select and remove all the other officers, agents, and employees
of the corporation, prescribe the powers and duties for them as may not be
inconsistent with law, or with the Articles or these By-Laws, fix their
compensation, and require from them security for faithful service.
(b) 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 or these By-Laws, as they may
deem best.
(c) 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.
(d) To authorize the issuance of shares of stock of the corporation
from time to time, upon such terms and for such consideration as may be
lawful.
(e) 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.
Section 2. NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized number of
directors of the corporation shall be three (3) until changed by amendment of
the Articles of Incorporation, by a By-Law duly adopted by the shareholders
amending this Section 2 or, if no shares have been issued, by a By-Law duly
adopted by the directors amending this Section 2.
Section 3. ELECTION AND TERM OF OFFICE. The directors shall be elected at
each annual meeting of the 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 the shareholders held for that purpose. All directors
shall hold office at the pleasure of the shareholders or until their respective
successors are elected. The shareholders may at any time,
-9-
either at a regular or special meeting, remove any director and elect his or her
successor.
Section 4. RESIGNATION AND REMOVAL OF DIRECTORS.
(a) Resignation: Any director may resign effective upon giving written
-----------
notice to the Chairman of the Board, the President, `Secretary or the Board
of Directors of the corporation, unless the notice specifies a later time
for the effectiveness of such resignation, in which case such resignation
shall be effective at the time specified.
(b) Unsound Mind; Felony: The Board of Directors may declare vacant the
--------------------
office of a director who has been declared of unsound mind by an order of
Court or convicted of a felony.
(c) Removal Without Cause by Shareholders: Any or all of the directors
-------------------------------------
may be removed without cause if such removal is approved by the affirmative
vote of a majority of the outstanding shares entitled to vote, provided
that no director may be removed (unless the entire board is removed) when
the votes cast against removal, or not consenting in writing to such
removal, would be sufficient to elect such director if voted cumulatively
at an election at which the same total number of votes were cast (or, if
such action is taken by written consent, all shares entitled to vote were
voted) and the entire number of directors authorized at the time of the
director's most recent election were then being elected.
(d) Reduction of Authorized Number of Directors: No reduction of the
-------------------------------------------
authorized number of directors shall have the affect of removing any
director before his term of office expires.
Section 5. VACANCIES.
(a) Vacancy Defined: A vacancy in the Board of Directors shall be
---------------
deemed to exist in the 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 is
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.
-10-
(b) Action by Board of Directors: 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, although less than a quorum, or by a
sole remaining director, and each director so elected shall hold office
until a 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 be filled only by the vote of majority of the shares
represented and voting 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.
(c) Action by Shareholders: 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 other than to fill a
vacancy created by removal shall require the consent of holders of a
majority of the outstanding shares entitled to vote.
Section 6. PLACE OF MEETING. Regular and special meetings of the Board of
Directors shall be held at any place within or without the State which has been
designated in the notice of the meeting, or, if not stated in the notice or
there is no notice, designated by resolution of the Board of Directors or,
either before or after the meeting, consented to in writing by members of the
Board pursuant to the provisions of ARTICLE III, Section 10 of these By-Laws.
If the place of a regular or special meeting is not designated in the notice or
fixed by a resolution of the Board or consented to in writing by all members of
the Board, it shall be held at the corporation's principal executive office.
Section 7. ORGANIZATION MEETING. Immediately following each annual meeting
of shareholders, the Board of Directors shall hold a regular meeting for the
purpose of organization, election of officers, and the transaction of other
business. Notice of such meeting is hereby dispensed with.
Section 8. SPECIAL MEETINGS. Special meetings of the Board of Directors for
any purpose may be called at any time by the Chairman of the Board or the
President or any Vice President or the Secretary or any Assistant Secretary, or
any two directors. Notice of the time of special meetings shall be delivered
personally or by telephone or
-11-
telegraph or sent to the directors by mail. In case notice is given by mail, or
telegram, it shall be sent, charges prepaid, addressed to him or her at his or
her address as it is shown on the records of the corporation, or if it is not on
these records or is not readily ascertainable, at the place where the regular
Board meetings are held. If notice is delivered personally or given by telephone
or telegraph, it shall be given or delivered to the telegraph office at least
twenty-four (24) hours before the meeting. If notice is mailed, it shall be
deposited in the United States mail at least forty--eight (48) hours before the
meeting.
A notice, or waiver of notice, need not specify the purpose of the meeting
of the Board of Directors.
Section 9. ACTION WITHOUT MEETING. Any action required or permitted to be
taken by the Board of Directors by law, according to the Articles of
Incorporation or according to these By-Laws 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. MEETINGS BY CONFERENCE TELEPHONE. Members of the Board of
Directors may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such a
meeting can hear and speak to one another. Participation by a director in a
meeting in the manner provided in this Section shall constitute presence in
person by such director at such meeting.
Section 11. ACTION AT 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
hereinafter provided. 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 is 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, the
Articles of Incorporation or these By-Laws. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of one or more directors, provided that any action taken is approved
by at least a majority of the required quorum for such meeting.
-12-
Section 12. WAIVER OF NOTICE. 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 be
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 commencement,
protested the lack of proper notice to him, signs a written waiver of notice or
a consent to holding such meeting or in approval of the minutes thereof. A
waiver of notice need not specify the purpose of any regular or special meeting
of the Board of Directors. All such waivers, consents or approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Section 13. ADJOURNMENT. A majority of the directors present, whether or
not a quorum is present, may adjourn any meeting to another time and place. If
the meeting is adjourned for more than twenty-four (24) hours, notice of the
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who are not present at the time of the
adjournment.
Section 14. FEES AND COMPENSATION. Directors shall not receive any stated
salary for their services as directors, but, by resolution of the board, a fixed
fee, with or without expenses of attending, may be allowed for attendance at
each meeting. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation therefor.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be:
a. President
b. Secretary
c. Treasurer
The corporation may also have, at the discretion of the Board of Directors,
a chairman of the Board, one or more vice-presidents, one or more
assistant-secretaries, one or more assistant-treasurers, and such other offices
as may be appointed by the Board of Directors. Officers other than the Chairman
of the Board need not be directors. One person may hold two or more offices.
-13-
Section 2. ELECTIONS. The officers of the corporation designated in the
preceding section of this Article, except such officers as may be elected or
appointed in accordance with Section 3 or Section 5 of this Article, shall be
chosen annually by the Board of Directors, and each shall bold his or her office
at the pleasure of the Board of Directors, who may, either at a regular or
special meeting, remove any such officer and appoint his or her successor.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may 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 By-Laws 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 that time in office, at a regular
or special meeting of the Board, or, except in case of an officer chosen by the
Board of Directors, by any officer upon whom such power or 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 By-Laws 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 him or her by the Board of Directors as prescribed by
the By-Laws.
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
-14-
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 affairs of the corporation. He 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 Directors. He
shall be ex-officio a member of all the 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 By-Laws.
Section 8. VICE-PRESIDENT. In the absence or disability of the president,
the vice-presidents in order of their rank as designated by the Board of
Directors, if there shall be such officers, 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-president 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 By-Laws.
Section 9. SECRETARY. The secretary shall record or cause to be recorded,
and shall keep a book of minutes at the principal executive office or such other
place as the Board of Directors may order, of actions taken at all meetings of
directors, shareholders and its committees, with the time and place of holding,
whether regular or special and if special, how authorized, the notice thereof
given, the names of those directors and shareholders present, the names of those
present at the directors' meeting, the number of shares 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; the number and date cancellation of every
certificate surrendered for cancellation.
The secretary shall give or cause to be given, notice of all meetings of
shareholders and the Board of Directors, as required by the By-Laws or by law
to be given, and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or the By-Laws.
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Section 10. TREASURER. The treasurer shall be the chief financial officer
of the corporation and 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, surplus shares and shall send or
cause to be sent to the Shareholders of the Corporation such financial
statements and reports as are by law or these By-Laws required to be sent to
them. 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 account. The books of account shall at all times
be open for inspection by any director.
The chief financial officer shall deposit all monies and other valuables in
the name and to the credit of the corporation with such depositories as may be
designated by the Board of Directors. He or she shall disburse the funds of the
corporation as may be ordered by the Board of Directors and shall render to the
president and directors, when they request it, an account of all of his or her
transactions as chief financial 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 these By-Laws.
ARTICLE V
EXECUTIVE AND OTHER COMMITTEES
The Board may appoint one or more committees, each consisting of two or
more directors, and delegate to such committees any of the authority of the
Board except with respect to:
(a) The approval of any action for which the California General Corporation
Law also requires shareholders' approval or approval of the outstanding
shares;
(b) The filling of vacancies on the Board or on any committee;
(c) The fixing of compensation of the directors for serving on the Board or
on any committee;
(d) The amendment or repeal of By-Laws or the adoption of new By-Laws;
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(e) The amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation except at a rate
or in a periodic amount or within a price range determined by the Board;
(g) The appointment of other committees of the Board or the members
thereof.
Any such committee must be appointed by resolution adopted by a majority of
the authorized number of directors and may be designated an Executive Committee
or by such other name as the Board shall specify. The Board shall have the power
to prescribe the manner in which proceedings of any such committee shall be
conducted. In the absence of any such prescription, such committee shall have
the power to prescribe the manner in which its proceedings shall be conducted.
Unless the Board or such committee shall otherwise provide, the regular and
special meetings and other actions of any such committee shall be governed by
the provisions of this Article applicable to meetings and actions of the Board.
Minutes shall be kept of each meeting of each committee.
ARTICLE VI
CORPORATE RECORDS AND REPORTS -- INSPECTION
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 shareholders 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 not be more than sixty (60) days nor less than ten (10) days prior
to the date of any meeting, not 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 By-Laws.
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If no record date is fixed by the Board; the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held. The record
date for determining shareholders entitled to give consent to corporate action
in writing without a meeting, when no prior action by the Board is necessary,
shall be the day on which the first consent is given.
The record date for determining shareholders for any other purpose shall be
at the close of business on the day on which the Board adopts the resolution
relating thereto, or the 60th day prior to the date of such other action
whichever is later.
Section 2. INSPECTION OF CORPORATE RECORDS. 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 shall be open to inspection upon the written
demand on the corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts.
A shareholder or shareholders holding at least five (5) percent in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one (1) percent of such voting shares and have filed a Schedule 14B with
the United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent or attorney) the
right to inspect and copy the record of shareholders ` names and addresses and
shareholdings during usual business hours upon five (5) business days' prior
written demand upon the corporation and to obtain from the transfer agent for
the corporation, upon written demand and upon the tender of its usual charges, a
list of the shareholders' names and addresses, who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or before
the later of five (5) business o days after the demand is received or the date
specified therein as the date as of which the list is to be compiled.
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Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the corporation. Such inspection by a director may be
made in person or by agent or attorney and the right of inspection includes the
right to copy and make extracts.
Section 3. CERTIFICATION AND INSPECTION OF BY-LAWS. The original or a copy
of these By-Laws, as amended or otherwise altered to date, certified by the
secretary, shall be open to inspection by the shareholders at all reasonable
times during office hours. If the principal executive office of the corporation
is outside the State of California and the corporation has no principal business
office in such state, it shall upon the written notice of any shareholder
furnish to such shareholder a copy of these By-Laws as amended to date.
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 shall be determined from time to time by
resolution of the Board of Directors.
Section 5. CONTRACTS, ETC. -- HOW EXECUTED. The Board of Directors, except
as the By-Laws 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. Such authority may be general or confined to
specific instances.
Section 6. ANNUAL AND OTHER REPORTS. The Board of Directors of the
corporation shall cause an annual report to be sent to the shareholder no later
than 120 days after the close of the fiscal or calendar year. Such report shall
contain a balance sheet as of the end of such fiscal year and an income
statement and statement of changes in financial position for such fiscal year,
accompanied by the report thereon of independent accountants or, if there is no
such report, the certificate of an authorized officer of the corporation that
such statements were prepared without audit from the books and records of the
corporation.
If no annual report for the last fiscal year has been sent to shareholders,
the corporation shall, upon the written request of any shareholder made more
than 120 days after the close of such fiscal year, deliver or mail to the
person making the request within (30) days thereafter the financial statements
required by this Section for such year.
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A shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of the corporation may make a written request of
the corporation for an income statement of the corporation for the three-month,
six-month or nine-month period of the current fiscal year ended more than thirty
(30) days prior to the date of the request and a balance sheet of the
corporation as of the end of such period and, in addition, if no annual report
for the last fiscal year has been sent to shareholders, the annual report for
the last fiscal year. The corporation shall use its best efforts to deliver the
statement to the person making the request within thirty (30) days thereafter. A
copy of any such statements shall be kept on file in the principal executive
office of the corporation for twelve (12) months and they shall be exhibited at
all reasonable times to any shareholder demanding an examination of them or a
copy shall be mailed to such shareholder.
The quarterly income statements and balance sheets referred to in this
Section 6 shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
ARTICLE VII
CERTIFICATES AND TRANSFER OF SHARES
Section 1. 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 any 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.
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Any such certificate shall also contain such legend or other statement as
may be required by Section 418 of the General Corporation Law, the Corporate
Securities Law of 1968, 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 By-Laws 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 cancelled 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 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. In the event of
the issuance of a new certificate, the rights and liabilities of the
corporation, and of the holders of the old and new certificates, shall be
governed by the provisions of Section 8104 and 8405 of the California Commercial
Code.
Section 2. TRANSFER ON THE BOOKS. Upon surrender to the secretary or
transfer agent of the corporation by proper evidence of succession, assignment
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.
Section 3. LOST OR DESTROYED CERTIFICATES. Any person claiming a certificate
of stock to be lost or destroyed shall make an affidavit or affirmation of that
fact and advertise the same in such manner as the Board of Directors may
require, and shall if the directors so require give the corporation a bond of
indemnity, in form with one or more sureties satisfactory to the Board, in at
least double the value of the stock represented by said certificate, whereupon a
new certificate may be issued of the same tenor
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and for the same number of shares as the one alleged to be lost or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company --- either
domestic or foreign, who shall be appointed at such times and places as the
requirements of the corporation may necessitate and the Board of Directors may
designate.
Section 5. RECORD DATE AND CLOSING BOOKS. The Board of Directors may fix a
time in the future as a record date for the determination of the shareholders
entitled to give consent to corporate action in writing without a meeting to
receive any report, dividends 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 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 By-Laws.
The Board of Directors may close the books of the corporation against
transfers of shares during the whole or any part of a period of not more than
sixty (60) days prior to the date of a shareholders' meeting, the date when the
right to any dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion, or exchange of shares.
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The president or
any vice-president and the secretary or 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 a person authorized so to do
by proxy or power of attorney duly executed by said officers.
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Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the California General Corporation Law shall govern the
construction of these By-Laws. 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.
ARTICLE VIII
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 attorneys' fees and any
expenses of establishing a right to indemnification under Section 4 or Section
5(c).
Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. 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 proceeding (other than an 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, 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.
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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
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 proceeding is or was pending 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, any
indemnification under this Article shall be made by the corporation only if
authorized in the specific case, upon a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3 by:
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(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
(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, By-Laws, 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
5(c) in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles, By-
Laws, 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.
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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.
Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS. This
Article does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in such person's
capacity as such, even though such person may also be an agent of the
corporation as defined in Section 1. The corporation shall have the power to
indemnify and to purchase and maintain insurance on behalf of any such trustee,
investment manager, or other fiduciary to the extent permitted by Section 207 of
the California General Corporation Law.
ARTICLE IX
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation, and the word
"California."
ARTICLE X
AMENDMENTS TO BY-LAWS
Section 1. BY SHAREHOLDERS. New By-Laws may be adopted or these By-Laws
may be repealed or amended at their annual meeting, or at any other meeting of
the shareholders called for that purpose, by a vote of shareholders entitled to
exercise a majority of the voting power of the corporation, or by written assent
of such shareholders, except as otherwise provided by law, the Articles of
Incorporation, or Article III Section 2 of these By-Laws.
Section 2. POWER OF DIRECTORS. Subject to the right of shareholders as
provided in Section 1 of this Article X to adopt, amend, or repeal By-Laws,
other than a By-Law or amendment thereof changing the authorized number of
directors, these By-Laws may be adopted, amended or repealed by the Board of
Directors; provided, however, that
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if no shares have been issued, the Board of Directors may adopt a By-Law or
amendment thereof changing the authorized number of Directors.
I, the undersigned, hereby certify:
1. That acting secretary of I am the duly elected, qualified and Paisano
Publications, Inc.
2. That the foregoing By-Laws of said corporation were duly adopted as the
By-Laws thereof by an Action Taken by Unanimous Written Consent of the
Shareholders of said corporation on July 9, 1981, and that the same do now
constitute the By-Laws of said corporation.
Executed this 14 day of Jan., 1982.
/s/ Joseph Teresi Sec.
----------------------------------------
Joseph Teresi,
Secretary of Paisano Publications,
Inc., a California corporation
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BY-LAWS OF
PAISANO PUBLICATIONS, INC.
ARTICLE I
SHAREHOLDERS' MEETING
Section 1. PLACE OF MEETINGS.
All meetings of the shareholders shall be held at the office of the
corporation in the State of California, as 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 5th day of
January 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 o'clock 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 President, or by the Board of
Directors, or by any two or more members thereof, or by one or more shareholders
holding not less than one-fifth (1/5) of the voting power of the corporation.
Section 4. NOTICE OF MEETINGS.
Notices 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 his 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 him to the corporation for the purpose
of notice, not less than seven days before such meeting.
Notice of any meeting of shareholders shall specify the place, the day and
the hour of meeting, and in case of special meeting, as provided by the
Corporations Code of California, the general nature of the business to be
transacted.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall be given as in case of an original meeting. Save, as
aforesaid, 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
at the meeting at which such adjournment is taken.
Section 5. CONSENT TO SHAREHOLDERS' MEETINGS.
The transactions of any meeting of shareholders, however called and
noticed, shall be valid as though had at a meeting duly held after regular call
and notice if a quorum be present either in person or by proxy, and if, either
before or after the meeting, each
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of the shareholders entitled to vote, not present in person or by proxy, sign 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.
Any action which may be taken at a meeting of the shareholders, may be
taken without a meeting if authorized by a writing signed by all of the holders
of shares who would be entitled to vote at a meeting for such purpose, and filed
with the Secretary of the corporation.
Section 6. QUORUM.
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 meetings of the shareholders for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation, or by
these By-Laws. If, however, such majority shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
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.
Section 7. VOTING RIGHTS; CUMULATIVE VOTING.
Only persons in whose names shares entitled to vote stand on the stock
records of the corporation on the day of any meeting of shareholders, unless
some other day be fixed by the Board of Directors for the determination of
shareholders of record, then on such other day, shall be entitled to vote at
such meeting.
Every shareholder entitled to vote shall be entitled to one vote for each
of said shares and shall have the right to cumulate his votes as provided in
Section 2235, Corporations Code of California.
Section 8. PROXIES.
Every shareholder entitled to vote, or to execute consents, may do so,
either in person or by written proxy, executed in accordance with the provisions
of Section 2225 of the Corporations Code of California and filed with the
Secretary of the corporation.
ARTICLE II
DIRECTORS; MANAGEMENT
Section 1. POWERS.
Subject to the limitation of the Articles of Incorporation, of the By-Laws
and of the Laws of the State of California as to action to be authorized or
approved by the shareholders, all corporate powers shall be exercised by or
under authority of, and the business and affairs of this corporation shall be
controlled by, a Board of Directors.
--2--
Section 2. NUMBER AND QUALIFICATION.
The authorized number of directors of the corporation shall be three (3),
until changed by amendment to the Articles of Incorporation or by an
amendment to this Section 2, Article II of these By-Laws, adopted by the vote or
written assent of the shareholders entitled to exercise the majority of the
voting power of the corporation.
Section 3. ELECTION AND TENURE OF OFFICE.
The directors shall be elected by ballot at the annual meeting of the
shareholders, to serve for one year and until their successors are elected and
have qualified. Their term of office shall begin immediately after election.
Section 4. VACANCIES.
Vacancies in the Board of Directors 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 successor is elected at
an annual meeting of shareholders or at a special meeting called for that
purpose.
The shareholders may at any time elect a director to fill any vacancy not
filled by the directors, and may elect the additional directors at the meeting
at which an amendment of the By-Laws is voted authorizing an increase in the
number of directors.
A vacancy or vacancies shall be deemed to exist in case of the death,
resignation or removal of any director, or if the shareholders shall increase
the authorized number of directors but shall fail at the meeting at which such
increase is authorized, or at an adjournment thereof, to elect the additional
director so provided for, or in case the shareholders fail at any time to elect
the full number of authorized directors.
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 shall become effective.
No reduction of the number of directors shall have the effect of removing
any director prior to the expiration of his term of office.
Section 5. REMOVAL OF DIRECTORS.
The entire Board of Directors or any individual director may be removed
from office as provided by Sections 807, 810 and 811 of the Corporations Code of
the State of California.
Section 6. PLACE OF MEETINGS.
Meetings of the Board of Directors shall be held at the office of the
corporation in the State of California, as designated for that purpose, from
time to time, by resolution of the Board of Directors, or written consent of all
of the Members of the Board. Any meeting shall be valid, wherever held, if held
by the written consent of all Members of the Board of Directors, given either
before or after the meeting and filed with the Secretary of the corporation.
--3--
Section 7. ORGANIZATION MEETINGS.
The organization meetings of the Board of Directors shall be held
immediately following the adjournment of the annual meetings of the
shareholders.
Section 8. OTHER REGULAR MEETINGS.
Regular meetings of the Board of Directors shall be held on such dates as
shall be set from time to time by the Board of Directors.
If said day shall fall upon a holiday, such meetings shall be held on the next
succeeding business day thereafter. No notice need be given of such regular
meetings.
Section 9. SPECIAL MEETINGS--NOTICES.
Special meetings of the Board of Directors for any purpose or purposes
shall be called at any time by the President or if he is absent or unable or
refuses to act, by any Vice-President, or by any two directors.
Written notice of the time and place of special meetings shall be delivered
personally to the directors or sent to each director by letter or by telegram,
charges prepaid, addressed to him at his address as it is shown upon the records
of the corporation, or if it is not so shown on such records or is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held. In case such notice is mailed or telegraphed, it shall be deposited in the
United States mail or delivered to the telegraph company in the place in which
the principal office of the corporation is located at least forty-eight (48)
hours prior to the time of the holding of the meeting. In case such notice is
delivered as above provided; it shall be so delivered at least twenty-four (24)
hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery as above provided shall be due, legal and personal
notice to such director.
Section 10. WAIVER OF NOTICE.
When all the directors are present at any directors' meeting, however
called or noticed, and sign a written consent thereto on the records of such
meeting, or, if a majority of the directors are present, and if those not
present sign in writing a waiver of notice of such meeting, whether prior to or
after the holding of such meeting, which said waiver shall be filed with
Secretary of the corporation, the transactions thereof are as valid as if had at
a meeting regularly called and noticed.
Section 11. NOTICE OF ADJOURNMENT.
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 12. QUORUM.
A majority of the number of directors as fixed by the articles or By-Laws
shall be necessary to constitute a quorum for the transaction of business, and
the action of a majority of the directors
--4--
present at any meeting at which there is a quorum, when duly assembled, is valid
as a corporate act; provided that a minority of the directors, in the absence of
a quorum, may adjourn from time to time, but may not transact any business.
Section 13. CONSENT OF BOARD OBVIATING NECESSITY OF MEETING
(Pursuant to California Corporations Code Section 814.5)
Notwithstanding anything to the contrary contained in these By-Laws, any
action required or permitted to be taken by the board of directors under any
provisions of Sections 100-6804 of the Corporations Code of California may be
taken without a meeting, if all members of the board of directors 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. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
ARTICLE III
OFFICERS
Section 1. OFFICERS.
The officers shall be a President, one or more Vice-Presidents, a Secretary
and a Treasurer, which officers shall be elected by, and hold office at the
pleasure of, the Board of Directors.
Section 2. ELECTION.
After their election the directors shall meet and organize by electing a
President from their own number, and one or more Vice-Presidents, a Secretary
and a Treasurer, who may, but need not be, members of the Board of Directors.
Any two or more of such offices except those of President and Secretary, may be
held by the same person.
Section 3. COMPENSATION AND TENURE OF OFFICE.
The compensation and tenure of office of all the officers of the
corporation shall be fixed by the Board of Directors.
Section 4. REMOVAL AND RESIGNATION.
Any officer may be removed, either with or without cause, by a majority of
the directors at the time in office, at any regular or special meeting of the
Board, or, except in case of any officer chosen by the Board of Directors, by
any officer upon whom such power of removal may be conferred by the Board of
Directors.
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. 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.
--5--
Section. 5. VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or other cause shall be filled in the manner prescribed in the
By-Laws for regular appointments to such office.
Section 6. PRESIDENT.
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 affairs of the
corporation. He shall preside at all meetings of the shareholders and of the
Board of Directors. He shall be ex-officio a member of all the 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 By-Laws,
Section 7. VICE-PRESIDENTS.
The Vice-Presidents shall, in the order designated by the Board of
Directors, in the absence or disability of the President, perform the duties and
exercise the powers of the President, and shall perform such other duties as the
Board of Directors shall prescribe.
Section 8. SECRETARY.
The Secretary shall keep, or cause to be kept, a book of minutes at the
principal office or such other place as the Board of Directors may order, of 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 at directors' meetings, the number of shares
present or represented at shareholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal 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 By-Laws or by
law to be given; he shall keep the seal of the corporation and affix said seal
to all documents requiring a seal, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or the By-Laws.
Section 9. TREASURER.
The Treasurer shall receive and keep all the funds of the corporation, and
pay them out only on the check of the corporation, signed in the manner
authorized by the Board of Directors.
--6--
Section 10. ASSISTANTS.
Any Assistant Secretary or Assistant Treasurer, respectively, may exercise
any of the powers of Secretary or Treasurer, respectively, as provided in these
By-Laws or as directed by the Board of Directors, and shall perform such other
duties as are imposed upon them by the By-Laws or the Board of Directors.
Section 11. SUBORDINATE OFFICERS.
The Board of Directors may from time to time appoint such subordinate
officers or agents as the business of the corporation may require, fix their
tenure of office and allow them suitable compensation.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors may appoint an executive committee, and such other
committees as may be necessary from time to time, consisting of such number of
its members and with such powers as it may designate, consistent with the
Articles of Incorporation and By-Laws and the General Corporation Laws of the
State of California. Such committees shall hold office at the pleasure of the
board.
ARTICLE V
CORPORATE RECORDS AND REPORTS-INSPECTION
Section 1. RECORDS.
The corporation shall maintain adequate and correct accounts, books and
records of its business and properties. All of such books, records and accounts
shall be kept at its principal place of business in the State of California, as
fixed by the Board of Directors from time to time.
Section 2. INSPECTION OF BOOKS AND RECORDS.
All books and records provided for in Sections 3003 - 3005 of the
Corporations Code of California shall be open to inspection of the directors and
shareholders from time to time and in the manner provided in said Sections 3003
- - 3005.
Section 3. CERTIFICATION AND INSPECTION OF BY-LAWS.
The original or a copy of these By-Laws, as amended or otherwise altered to
date, certified by the Secretary, shall be open to inspection by the
shareholders of the company, as provided in Section 502 of the Corporations Code
of California.
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
shall be determined from time to time by resolution of the Board of Directors.
--7--
Section 5. CONTRACTS, ETC.--HOW EXECUTED.
The Board of Directors, except as in the By-Laws otherwise provided, 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. Such
authority may be general or confined to specific instances. 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 6. ANNUAL REPORTS.
The Board of Directors shall cause annual reports to be made to the
shareholders as provided by Sections 3006 - 3012 of the Corporations Code of
California. The Board of Directors shall cause such annual reports to be sent to
the shareholders not later than one hundred twenty (120) days after the close of
the fiscal or calendar year.
ARTICLE VI
CERTIFICATES AND TRANSFER OF SHARES
Section 1. CERTIFICATES FOR SHARES.
Certificates for shares shall be of such form and device as the Board of
Directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; the par value, if any, or a statement that such shares
are without par value; a statement of the rights, privileges, preferences and
restrictions, if any; a statement as to redemption or conversion, if any; a
statement of liens or restrictions upon transfer or voting, if any; if the
shares be assessable, or, if assessments are collectible by personal action, a
plain statement of such facts.
Every certificate for shares must be signed by the President or a Vice-
President and the Secretary or an Assistant Secretary or must be authenticated
by facsimiles of the signatures of the President and Secretary or by a facsimile
of the signature of its President and the written signature of its Secretary or
an Assistant Secretary. Before it becomes effective every certificate for shares
authenticated by a facsimile of a signature must be countersigned by a transfer
agent or transfer clerk and must be registered by an incorporated bank or trust
company, either domestic or foreign, as registrar of transfers.
Section 2. TRANSFER ON THE BOOKS.
Upon surrender to the Secretary or transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment 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.
Section 3. LOST OR DESTROYED CERTIFICATES.
Any person claiming a certificate of stock to be lost or
--8--
destroyed shall make an affidavit or affirmation of that fact and advertise the
same in such manner as the Board of Directors may require, and shall if the
directors so require give the corporation a bond of indemnity, in form and with
one or more sureties satisfactory to the Board, in at least double the value of
the stock represented by said certificate, whereupon a new certificate may be
issued of the same tenor and for the same number of shares as the one alleged to
be lost or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS.
The Board of Directors may appoint one or more transfer agents of transfer
clerks, and one or more registrars, which shall be an incorporated bank or trust
company--either domestic or foreign, who shall be appointed at such times and
places as the requirements of the corporation may necessitate and the Board of
Directors may designate.
Section 5. CLOSING STOCK TRANSFER BOOKS.
The Board of Directors may close the transfer books in their discretion for
a period not exceeding thirty days preceding any meeting, annual or special, of
the shareholders, or the day appointed for the payment of a dividend.
ARTICLE VII
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation, and the word
California.
ARTICLE VIII
AMENDMENTS TO BY-LAWS
Section 1. BY SHAREHOLDERS.
New By-Laws may be adopted or these By-Laws may be repealed or amended at
their annual meeting, or at any other meeting of the shareholders called for
that purpose, by a vote of shareholders entitled to exercise a majority of the
voting power of the corporation, or by written assent of such shareholders.
Section 2. POWERS OF DIRECTORS.
Subject to the right of the shareholders to adopt, amend or repeal By-Laws,
as provided in Section 1 of this Article VIII, the Board of Directors may adopt,
amend or repeal any of these By-Laws other than a By-Law or amendment thereof
changing the authorized number of directors.
Section 3. RECORD OF AMENDMENTS.
Whenever an amendment or new By-Law is adopted, it shall be copied in the
Book of By-Laws with the original By-Laws, in the appropriate place. If any
By-Law is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or written assent was filed shall be stated in said book.
--9--
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, being all of the persons appointed in the Articles of
Incorporation to act as the first Board of Directors of PAISANO PUBLICATIONS,
INC. hereby assent to the foregoing By-Laws, and adopt the same as the By-Laws
of said corporation.
IN WITNESS WHEREOF, we have hereunto set our hands this __ day of ___________
19__.
)
/s/ Joseph Teresi )
- ---------------------------- )
JOSEPH TERESI )
)
)
/s/ Milford C. Blair )
- ---------------------------- ) Directors.
MILFORD C. BLAIR )
)
)
/s/ Louis Kimex )
- ---------------------------- )
LOUIS KIMEX )
)
)
)
)
)
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of PAISANO
PUBLICATIONS, INC. and that the above and foregoing By-Laws were adopted as the
By-Laws of said corporation on the 22nd day of January 1971, by the persons
appointed in the Articles of Incorporation to act as the first directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto my hand this 22nd day of January 1971.
/s/ MILFORD C. BLAIR
------------------------------
Secretary. MILFORD C. BLAIR
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary PAISANO
PUBLICATIONS, INC. of and that the above and foregoing Code of By-Laws was
submitted to the shareholders at their first meeting held on the 22nd day of
January 1971, and was ratified by the vote of the shareholders entitled to
exercise the majority of the voting power of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of January
1971.
/s/ MILFORD C. BLAIR
------------------------------
Secretary. MILFORD C. BLAIR
--10--
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
PAISANO PUBLICATIONS, INC.
The directors of Paisano Publications, Inc. ("Corporation"), hereby adopt
the following resolution by this action in lieu of a meeting:
AUTHORIZATION TO BORROW
WHEREAS, the Corporation proposes to borrow from Siena Capital Partners,
L.P. ("Siena") the sum of $275,000 pursuant to the terms set forth on Exhibit A,
attached hereto and by this reference made a part hereof (the "Loan
Transaction"), and
WHEREAS, the Loan Transaction is deemed to be in the best interests of
Corporation,
NOW, THEREFORE, BE IT RESOLVED, that the Corporation is hereby authorized
to enter into the Loan Transaction and perform all obligations required of it in
connection therewith, and
RESOLVED FURTHER, that the President and Chief Financial Officer of the
Corporation are authorized and directed to execute all documents necessary to
effect the foregoing.
The foregoing resolutions are effective as of September 3, 1999.
/s/ JOHN MARTIN /s/ ROBERT DAVIS
- ------------------------------- ---------------------------------
JOHN MARTIN ROBERT DAVIS
/s/ JOSEPH TERESI /s/ WILLIAM PRATHER
- ------------------------------- ---------------------------------
JOSEPH TERESI WILLIAM PRATHER
/s/ J. ROBERT FABREGAS
- -------------------------------
J. ROBERT FABREGAS
EXHIBIT A
---------
[LOGO] Imperial
Capital, LLC
- -------------------------------------------------------------------------------
150 SOUTH RODEO DRIVE, SUITE 100 BEVERLY HILLS, CA 90212
310-246-3700 800-929-2299 FAX 310-246-3794
September 3, 1999
Mr. J. Robert Fabregas
Chief Financial Officer
Easyriders, Inc.
28210 Dorothy Drive
Agoura Hills, California 91301
Dear Bob:
This letter confirms our understanding that Easyriders, Inc. (which together
with its subsidiaries and affiliates is hereinafter referred to as the
"Company") has engaged Imperial Capital, LLC ("IC") to act as exclusive
financial advisor to the Company in efforts to enter into a Transaction with the
publishing subsidiary ("Publishing Division") of the Company which Transaction
may include a possible transaction or series of transactions representing a
merger, consolidation or any other business combination, sale of all or a
substantial amount of the Publishing Division (or any other subsidiaries sold as
part of the sale of the Publishing Division) business, securities or assets of
the Company, any recapitalization or spinoff or any transaction which is
structured to substantially achieve the same result (each, a "Transaction").
Section 1. Services to be Rendered. In connection with a Transaction, IC's
-----------------------
services to the Company may include: (i) assistance in the preparation of
materials describing the Company, its operations, historical performance and
future prospects; (ii) advising on a proposed purchase price and form of
consideration; (iii) assisting the Company in structuring a Transaction; and
(iv) identifying and contacting selected qualified purchasers (the "Purchasers")
for any Transaction.
Section 2. Compensation. As compensation for the services to be provided by IC
------------
hereunder with respect to a Transaction, the Company agrees to pay to IC;
(i) a retainer fee of $50,000 (the "Retainer") to be paid as follows:
(a) $25,000 payable promptly upon the earlier of (i) the receipt by the
Company of new financing proceeds (the "Financing Proceeds") equal
to or in excess of $300,000 or (ii) one month following the
execution of this Agreement; and
(b) three equal monthly installments of the remaining balance with
payments beginning one month from the date of this Agreement; and
Nothwithstanding anything to the contrary contained in section 2 (i)
above, the full amount of the Retainer will be payable upon a termination
by the Company of this Agreement.
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 2
(ii) one and one-quarter percent (1.25%) of Aggregate Consideration (as
defined below) received in a Transaction to the extent that the Aggregate
Consideration is less than forty million dollars ($40,000,000); one and one-half
percent (1.50%) of Aggregate Consideration received in a Transaction to the
extent that the Aggregate Consideration is equal to or greater than forty
million dollars ($40,000,000) and less than fifty five million dollars
($55,000,000); and one and three-quarter percent (1.75%) of Aggregate
Consideration received in a Transaction to the extent that the Aggregate
Consideration is greater than fifty five million dollars ($55,000,000) (the
"Success Fee"). The Retainer will be credited against the Success Fee upon
consummation of the Transaction.
The "Aggregate Consideration" in a Transaction for purposes of determining the
Transaction Fee shall mean (x) the aggregate amount of consideration received by
the Company and/or its shareholders (treating any shares issuable upon exercise
of options, warrants or other rights of conversion as outstanding) and the
implied value of any equity interest retained by the Company's shareholders in
the Publishing Division or any other subsidiaries or assets sold with the
Publishing Division plus (y) the amount of any debt assumed or repaid or
preferred stock redeemed or remaining outstanding in connection with a
Transaction. The Transaction Fee shall be payable in cash promptly upon
consummation of a Transaction.
A Transaction shall be deemed to have been consummated upon the earliest of any
of the following events to occur: (i) a merger or consolidation of the
Publishing Division with or into the Purchaser or an entity controlled by the
Purchaser; (iii) the acquisition by the Purchaser or an entity controlled by the
Purchaser of substantially all of the Publishing Division's assets; or (iv) in
the case of any other Transaction, the consummation thereof.
In the event that the consideration received in a Transaction is paid in whole
or in part in the form of securities or other assets, the value of such
securities or other assets, for purposes of calculating our cash compensation
referred to in clause (i) above, shall be the fair market value thereof, as the
parties hereto shall mutually agree, on the day prior to the consummation of a
Transaction; provided, that if such consideration includes securities with an
existing public trading market, the value thereof shall be determined by the
last sales price for such securities on the last trading day thereof prior to
such consummation. In the event that all or some portion of the consideration is
related to the future earnings or operations of the Company, the portion of IC's
compensation relating thereto shall be calculated and shall be paid at the time
a Transaction is consummated (as determined by the preceding paragraph) based
upon the estimated net present value thereof
As IC will be acting on your behalf, the Company agrees to the indemnification
and other obligations set forth in Schedule I attached hereto, which Schedule is
an integral part hereof.
In addition, upon consummation of a Transaction, the Company agrees to reimburse
IC for all reasonable out-of-pocket expenses incurred by IC in connection with
this engagement. IC will be paid a cash expense advance of $25,000 that will be
used by IC to defray its out-of-pocket expenses and any unused amounts will be
returned to the Company. An initial deposit of $7,500 will be payable upon
execution of this Agreement. $7,500 of the remaining $17,500 will be payable
upon the earlier of (i) a documented request by IC for additional out-of-pocket
expenses, (ii) one month following the execution of this Agreement; or (iii)
upon receipt of any financing proceeds. The final $10,000 will be payable upon
the earlier of (i) a request by IC for additional out of pocket expenses or (ii)
in three equal monthly installments with the first installment payable one month
from the date of execution of this Agreement. Further, the Company will be
responsible for all other expenses associated with a potential Transaction,
including, but not limited to, its own accounting and legal fees, printing and
travel costs. Reimbursement of out-of-pocket expenses will be paid to IC
promptly by the Company whether or not a Transaction is consummated. The Company
shall
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 3
have the right to approve any one time expense in excess of $5,000 (which shall
exclude the printing bill which both parties hereby acknowledge will exceed
$5,000).
Section 3. Term of Engagement. This Agreement may be terminated by either
------------------
party hereto upon 30 days written notice. Upon any termination or expiration of
this agreement, IC will be entitled to prompt payment of all fees and out of
pocket expenses accrued prior to such termination or expirations. Sections 2, 3,
5, 6, 9 and 10 of this Agreement and the indemnity and other provisions
contained in Schedule I will also remain operative and in full force and effect
regardless of any termination or expiration of this Agreement except that the
provisions of Schedule I shall only be effective for a period ten years from the
date of such termination or expiration. Any termination shall be in writing by
either party.
In addition, if at any time prior to 24 months after the termination or
expiration of this Agreement, the Company enters into a Transaction with any
party to whom IC has sent selling materials and engaged in substantial
discussions and the Company completes any such Transaction, IC, in addition to
any expense reimbursement otherwise owing pursuant to Section 2 of this
Agreement, shall be entitled to payment in full of the compensation described in
Section 2 of this Agreement with respect to such Transaction. Not withstanding
anything to the contrary contained in this paragraph, the Company shall have no
liability to IC if it enters into a transaction more than 12 months following
the termination or expiration of this Agreement with parties to whom IC only
delivered selling materials (i.e. IC did not have substantial discussions with
such party).
In addition, if at any time prior to 12 months after the termination or
expiration of this Agreement, the Company enters into a Transaction with any
party not introduced by IC and the Company completes any such Transaction, IC,
in addition to any expense reimbursement otherwise owing pursuant to Section 2
of this Agreement shall be entitled to payment in full of the compensation
described in Section 2 of this Agreement with respect to such Transaction.
Section 4. Cooperation. To the extent possible, the Company will furnish IC
-----------
with all financial and other information and data as IC reasonably believes
appropriate in connection with its activities on the Company's behalf, and shall
provide IC access to its officers, directors, employees and professional
advisors. In addition, during the term of this Agreement, the Company agrees to
forward the names of potential Purchasers to IC. Such potential Purchasers will,
for purposes of this letter be parties introduced by IC. In addition, the
Company with the assistance of IC will be responsible for preparing the
materials relating to any Transaction. The Company agrees that it and its
counsel will be solely responsible for ensuring that the materials and any
Transaction comply in all respects with the applicable law, except with regard
to statements or representations with regard to IC. The Company, to the extent
possible, authorizes IC to transmit the materials to potential participants in a
Transaction. The Company will also cause to be furnished to IC at the closing,
copies of such agreements, opinions, certificates and other documents delivered
at the closing as IC may reasonably request. The Company will promptly notify IC
if it learns of any material inaccuracy or misstatement in, or material omission
from, any information theretofore delivered to IC.
The Company recognizes and confirms that IC, in connection with performing
its services hereunder: (i) will be relying without investigation upon all
information that is available from public sources or supplied to it by or on
behalf of the Company, or its advisors, (ii) shall not in any respect be
responsible for the accuracy or completeness of, or have any obligation to
verify, the same, (iii) will not conduct any appraisal of arty assets of the
Company, and (iv) may require that any materials contain appropriate disclaimers
consistent with the foregoing. The Company recognizes and confirms that IC will
be relying on the Company for the information that it will be providing to IC.
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 4
Section 5. Confidentiality. The Company agrees that any advice, written or
---------------
oral, provided by IC pursuant to this Agreement will be treated by the Company
as confidential, will be solely for the information and assistance of the
Company in connection with its consideration of a transaction of the type
referred to in Section 1 of this Agreement and will not be used, circulated,
quoted or otherwise referred to for any other purpose, nor will it be filed
with, included in or referred to, in whole or in part, in any registration
statement, proxy statement or any other communication, whether written
(including, without limitation, any materials furnished with respect to a
Transaction) or oral, prepared, issued or transmitted by the Company or any
affiliate, director, officer, employee, agent or representative of any thereof,
without, in each instance, IC's prior written consent.
Further, in connection with this engagement of IC, it is contemplated that
the Company will supply to IC certain non-public or proprietary information
concerning the Company ("Confidential Information"). The Company agrees to use
its best efforts to appropriately mark all such information which is delivered
in written form. IC shall use Confidential Information solely for the purposes
of rendering services pursuant to and in accordance with this engagement and
shall nor, without the prior written consent of the Company, disclose any
Confidential Information to any person, other than its officers, directors,
employees and outside advisors with a need to know; provided, however, that the
foregoing shall not apply to any information which becomes publicly available
other than as a result of the breach of IC's undertakings hereunder, or that
which IC is required to disclose by judicial or administrative process in
connection with any action, suit, proceeding or claim.
Section 6. Conflicts. The Company acknowledges that IC and its affiliates
---------
may have and may continue to have investment banking and other relationships
with parties other than the Company pursuant to which IC may acquire information
of interest to the Company. IC shall have no obligation to disclose such
information to the Company, or to use such information in connection with any
contemplated transaction. The Company recognizes that IC is being engaged
hereunder to provide the services described above only to the Company and is not
acting as an agent or a fiduciary of, and shall have no duties or liability to,
the equity holders of the Company or any third party in connection with its
engagement hereunder, all of which are hereby expressly waived. No one other
than the Company is authorized to rely upon the engagement of IC hereunder or
any statements, advice, opinions or conduct by IC.
Section 7. Exclusivity. The Company agrees that no other financial advisor
-----------
is or will be authorized by it during the term of this Agreement to perform
services relative to the Publishing Division on its behalf of the type which IC
is authorized to perform hereunder. No fee payable to any other financial
advisor either by the Company or any other entity shall reduce or otherwise
affect the fees payable hereunder to IC.
Section 8. Public Announcements. IC shall have the right to place
--------------------
announcements and advertisements in financial and other newspapers and journals,
at its own expense, describing their services in connection with any Transaction
hereunder, provided that IC obtain the Company's consent, which consent will not
be unreasonably withheld.
Section 9. Complete Agreement; Severability; Amendments; Assignment. This
--------------------------------------------------------
Agreement embodies the entire agreement and understanding between the parties
hereto and supersedes any prior agreements and understandings relating to the
subject matter hereof (notwithstanding anything to the contrary contained
herein, this Agreement shall in no way affect the provisions of any written
agreements between IC and the Company related to past or future financings or
services). If any provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect such provision
in any other respect or any other provision of this Agreement, which will remain
in full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 5
instrument in writing signed by both IC and the Company. This Agreement may not
be assigned by either party without the prior written consent of the other
party.
This Agreement shall be binding upon and inure to the benefit of the Company,
IC, each Indemnified Person (as defined in Schedule I hereto) and their
respective successors and assigns.
Section 10. Governing Law; Forum. This Agreement will be governed by, and
--------------------
construed in accordance with, the laws of the state of California applicable to
agreements made and to be performed entirely in such state. Each of the Company
and IC agree that any action or proceeding based hereon, or arising out of IC's
engagement hereunder, shall be entitled to reasonable attorney fees.
Section 11. Notwithstanding anything to the contrary herein contained, or
which might be implied from the nature of IC's exclusive representation, the
final decision as to whether it should proceed with any Transaction rests solely
and exclusively with the Company and the Company shall not be liable to IC for a
fee of any kind if it elects not to proceed with a proposed Transaction except
for the Retainer and any fee due to IC under Section 3 of this Agreement.
Section 12. Nothing herein contained shall be deemed to preclude the sale
of any subsidiary of the Company (other than Paisano Publications, Inc.) or all
or any portion of the assets of any such subsidiary, and the proceeds of any
such sale shall not be commissionable to IC unless the buyer of such subsidiary
was introduced to IC as part of a possible Transaction with the Publishing
Division.
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 6
Please confirm that the foregoing correctly sets forth our agreement by signing
and returning to IC the enclosed original copy of this Agreement.
Very truly yours,
IMPERIAL CAPITAL, LLC
By: /s/ Jason Reese
-------------------------------
Jason Reese
President
Accepted as of the date written above,
EASYRIDERS, INC.
By: /s/ J. Robert Fabregas
-----------------------------------
J. Robert Fabregas
Chief Financial Officer
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 7
Schedule I
This Schedule I is a part of and is incorporated into that certain letter
agreement (together, the "Agreement") dated September 3, 1999 by and between
Easyriders, Inc. (the "Company") and Imperial Capital, LLC ("IC").
This Schedule will confirm that the Company agrees to indemnify and hold
harmless IC and its affiliates, the respective directors, officers, and
employees of IC and its affiliates and each other person, if any, controlling IC
or any of its affiliates (IC and each such person and entity being referred to
as an "Indemnified Person"), to the full extent lawful, from and against any
------------------
losses, claims, damages or liabilities or actions (including without limitation
shareholder actions and actions arising from the use of information contained in
any materials furnished with respect to a Transaction or omissions from such
materials) related to or arising out of this engagement or IC's role in
connection herewith, and will pay (or if paid by an Indemnified Person,
reimburse such Indemnified Person) for all fees and expenses (including without
limitation counsel fees) incurred by such Indemnified Person in connection with
investigating, preparing or defending any such action or claim, whether or not
in connection with pending or threatened litigation in which any Indemnified
Person is a party. The Company will not, however, be responsible for any claims,
liabilities, losses, damages or expenses which result from any compromise or
settlement not approved by the Company or which result primarily from the fraud,
willful misconduct or gross negligence of any Indemnified Person. The Company
also agrees that no Indemnified Person shall have any liability to the Company
for or in connection with this engagement, except for any such liability for
losses, claims, damages, liabilities or expenses incurred by the Company that
result from the fraud, willful misconduct or gross negligence of the Indemnified
Person or the violation of any applicable law, rule or regulation. The foregoing
agreement shall be in addition to any rights that any Indemnified Person may
have at common law or otherwise, including without limitation any right to
contribution. The Company's agreement to indemnify IC and other indemnified
Persons pursuant to this letter shall not be disclosed publicly or made
available to third parties by either party hereto without the other party's
prior written consent.
If any action or proceeding is brought against any Indemnified Person in
respect of which indemnity may be sought against the Company pursuant hereto, or
if any Indemnified Person receives notice from any potential litigant or a claim
which such person reasonably believes will result in the commencement of any
such action or proceeding, such Indemnified Person shall promptly notify the
Company in writing of the commencement of such action or proceeding, or of the
existence of any such claim, but the failure so to notify the Company of any
such action or proceeding shall not relieve the Company from any other
obligation or liability which it may have to any Indemnified Person otherwise
than under this Agreement or with respect to any other action or proceeding. In
case any such action or proceeding shall be brought against any Indemnified
Person, the Company shall be entitled to participate in such action or
proceeding with counsel of the Company's choice, or compromise or settle such
action or proceeding, at its expense (in which case the Company shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by such Indemnified Person); provided, however, that such counsel shall
-----------------
be satisfactory to the Indemnified Person in the exercise of its reasonable
judgment. Notwithstanding the Company's election to assume the defense of such
action or proceeding, such Indemnified Person shall have the right to employ
separate counsel and to participate in the defense of such action or proceeding,
and the Company shall bear the reasonable fees, costs and expenses of such
separate counsel (and shall pay such fees, costs and expenses at least
quarterly), if (i) the use of counsel chosen by the Company to represent such
indemnified Person would, in the reasonable judgment of the Indemnified Person,
present such counsel with a conflict of interest; (ii) the defendants in, or
targets of, any such action or proceeding include both an Indemnified Person and
the Company, and such Indemnified Person shall have reasonably concluded that
there may be legal defenses available to it or to other Indemnified Persons
which are different from or additional to those available to the Company (in
which case the Company shall
J. Robert Fabregas
Easyriders, Inc.
September 3, 1999
Page 8
not have the right to direct the defense of such action or proceeding on behalf
of the indemnified Person); (iii) the Company shall not have employed counsel
satisfactory to such Indemnified Person in the exercise of the Indemnified
Person's reasonable judgment to represent such Indemnified Person within a
reasonable time after notice of the institution of such action or proceeding; or
(iv) the Company shall authorize such Indemnified Person to employ separate
counsel at the Company's expense.
In order to provide for the just and equitable contribution, if a claim for
indemnification hereunder is found unenforceable in a final judgment by a court
of competent jurisdiction (not subject to further appeal), even though the
express provisions hereof provide for indemnification in such case, then the
Company and IC shall contribute to the losses, claims, damages, judgments,
liability or costs to which the Indemnified Person may be subject in accordance
with the relative benefits received by, and the relative fault of, each in
connection with the statements, acts or omissions which resulted in such losses,
claims, damages, judgments, liabilities, or costs provided however Ics
contribution will not be in excess of the total fees received by it under the
Agreement. No person found liable for a fraudulent misrepresentation or omission
shall be entitled to contribution from any person who is not also found liable
for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, IC shall not be obligated to contribute to any amount hereunder that
exceeds the amount of fees previously received by IC for its services to the
Company.
These indemnification provisions shall (i) remain operative and in full
force and effect regardless of any termination or completion of the engagement
of IC; (ii) inure to the benefit of any successors, assigns, heirs or personal
representative of any Indemnified Person; and (iii) be in addition to any other
rights that any Indemnified Person may have.
EXHIBIT B
---------
The following term sheet is for discussion and does not constitute a commitment
or undertaking to provide financing.
Easyriders, Inc.
Increasing Rate Senior Bridge Notes
Summary of Proposed Terms
- -------------------------------------------------------------------------------
Issuer.......................Paisano Publications, Inc. (the "Company").
Lender.......................Siena Capital Partners, L.P., affiliates ("Siena")
and bridge participants.
Issue........................Increasing Rate Senior Bridge Notes (the "Bridge
Notes").
Principal Amount.............$275,000.
Use of Proceeds..............The proceeds of the Bridge Notes will be used to
fund an intercompany loan to Easyriders, Inc. for
general corporate purposes.
Final Maturity...............October [ ], 2000, (12 months).
Commitment Fee...............4.0% of the principal amount of the Bridge Notes,
payable in cash at closing to Siena.
Interest Rate................13.0% in cash plus 7.0% payable-in-kind for the
first six months, increasing on the first day of
each month thereafter by 1% payable-in-kind.
Interest shall be payable monthly in cash in
arrears.
Warrants.....................To the extent that the Bridge Notes have not been
repaid in full, Easyriders, Inc will grant Siena a
warrant to purchase 100,000 shares of common stock
on the sixth month anniversary, 400,000 shares of
common stock on the ninth month anniversary and
500,000 shares of Common Stock on the twelfth
month anniversary of the closing date of the Bridge
Notes (the "Additional Warrants"). To the extent
the Bridge Notes are not repaid at Final Maturity,
warrants will continue to increase by 150,000 per
month until the Bridge Notes are repaid. The
Warrants will have (i) a nominal exercise price,
(ii) a 7-year term, (iii) "cash-less" exercise
provisions, (iv) unlimited "piggy-back"
registration rights subject to underwriter cutbacks
and (v) standard anti-dilution provisions.
Page 1
DRAFT
Ranking......................The Bridge Notes will be subordinated to the
senior indebtedness of Nomura Holdings America, Inc
("Nomura") existing at the time of closing of the
Bridge Notes including any additional debt under
the Revolving Notes (as defined in the Nomura Loan
Documents). The Notes will be senior to any and all
existing and future Subordinated Indebtedness.
Guarantee....................The Bridge Notes will be guaranteed by Easyriders,
Inc. The Guarantee will be secured by all of the
common stock held by Easyriders, Inc. in El Paso
Barbecue Restaurants, Inc.
Optional Redemption..........The Bridge Notes may be prepaid at any time in
whole or in part at 100% of the principal amount to
be prepaid, together with interest accrued and
unpaid to the date fixed for such prepayment
without penalty or premium.
Right of First Refusal.......Mr. Teresi and Mr. Martin shall have the right to
purchase the Bridge Notes at par plus accrued
interest prior to any sale to any other party. Mr.
Teresi and Mr. Martin shall also have the right at
any time following the closing of the Bridge Notes
to purchase the Bridge Notes at par plus accrued
interest.
Mandatory Redemption.........Subject to the subordination arrangements between
Siena and Nomura, the Bridge Notes will become
immediately due and payable upon the earlier of (i)
the occurrence of an event of default under the
Note Purchase Agreement, (ii) proceeds from the
sale of any material assets of Easyriders, Inc. or
any of its subsidiaries, and/or (iii) the funding
of any other financing.
Excess Cash Repurchase.......Beginning on the sixth month anniversary and for
each month thereafter until the Bridge Notes are
repaid in full, if any of the Bridge Notes remain
outstanding, the Company will be required in order
of priority to pay accrued interest on the Bridge
Notes and repurchase the Bridge Notes with 25% of
its Excess Cash Flow (as defined in the Nomura Loan
Documents.)
Subordination................Siena and Nomura will enter into subordination
- ------------- arrangements acceptable to both parties prior to
the closing of the Bridge Notes.
Covenants....................The Bridge Notes will contain certain covenants,
including, but not limited to, covenants with
respect to the following matters: (i) limitations
on the incurrence of additional indebtedness and
the issuance of disqualified capital stock; (ii)
limitations on restricted payments; (iii)
limitations on the sale of
Page 2
DRAFT
assets; (iv) limitations on lines of business; (v)
limitations on transactions with affiliates; (vi)
limitations on additional liens; (vii) restrictions
on mergers, consolidations and the transfer of all
or substantially all of the assets of the Company
to another person; and (viii) certain additional
financial covenants, among others.
Indemnification..............The Company will agree to: (i) indemnify and hold
harmless Siena and Imperial Capital, LLC, each of
their affiliates and each director, officer,
employee and agent of each such entity (each an
"Indemnified Person") from and against any and all
losses, claims, damages, liabilities and expenses
that arises out of, result from or relate to the
Bridge Notes, and (ii) reimburse each Indemnified
Person for all legal or other expenses incurred in
connection with investigating, defending or
participating in the defense of any such matter
(whether or not such Indemnified Person is a party
to any action or proceeding out of which any such
expense arises.)
Representations and
Warranties..................Customary for a transaction of this nature.
Expenses.....................The Company will pay all expenses of Siena,
including but not limited to, reasonable expenses
of counsel.
Page 3
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
EASYRIDERS, INC.
The directors of Easyriders, Inc. ("Corporation"), hereby adopt the
following resolutions by this action in lieu of a meeting:
1. ENGAGEMENT OF IMPERIAL CAPITAL
RESOLVED, that the engagement of Imperial Capital, LLC pursuant to the
engagement agreement attached hereto as Exhibit A and by this reference made a
part hereof is hereby ratified as a lawful corporate act, and the officers of
the Corporation are hereby authorized and directed to perform the obligations
and enforce the rights of the Corporation pursuant thereto.
2. ISSUANCE OF WARRANTS
WHEREAS, the Corporation's subsidiary, Paisano Publications, Inc.
("Paisano") proposed to borrow from Siena Capital Partners, LP ("Siena") the sum
of $275,000 pursuant to the terms set forth on Exhibit B, attached hereto and by
this reference made a part hereof, and
WHEREAS, pursuant to such transaction it is contemplated that Corporation
will issue to Siena warrants to purchase shares of the Corporation's common
stock in the amount and upon the terms set forth on Exhibit B (the "Warrants"),
and
WHEREAS, the issuance of such Warrants is deemed to be in the best
interests of the Corporation,
NOW, THEREFORE, BE IT RESOLVED, that the corporation is hereby authorized
to issue the Warrants and perform all obligations required of it in connection
therewith, and
Balance of this page left blank intentionally.
Page 1 of 2
RESOLVED FURTHER, that the President and/or Chief Financial Officer of the
Corporation are authorized and directed to execute all documents necessary to
effect the foregoing.
The foregoing resolutions are effective as of September 3, 1999.
/s/ John Martin /s/ Daniel Gallery
- ----------------------------- -----------------------------
JOHN MARTIN DANIEL GALLERY
/s/ Stewart Gordon /s/ Joseph Jacobs
- ----------------------------- -----------------------------
STEWART GORDON JOSEPH JACOBS
/s/ Wayne Knyal /s/ Ellen Meagher
- ----------------------------- -----------------------------
WAYNE KNYAL ELLEN MEAGHER
/s/ William Prather /s/ Joseph Teresi
- ----------------------------- -----------------------------
WILLIAM PRATHER JOSEPH TERESI
Page 2 of 2
Exhibit D
GUARANTEE AND PLEDGE