BY LAWS
OF
ANAGRAM PLUS INC.
(A DELAWARE CORPORATION)
I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
II
MEETING OF STOCKHOLDERS
Section 1. Place of Meeting. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting or in
a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Section 3. Special Meetings. Special Meetings of the stockholders may be
called by the Board of Directors, the Chairman of the Board, the President, or
by the holders of shares entitled to cast not less that 25% of the votes at the
meeting. Upon request in writing to the Chairman of the Board, the President,
any Vice President or the Secretary by any person (other than the board)
entitled to call a special meeting of the stockholders, the officer forthwith
shall cause notice to be given to the stockholders entitled to vote that a
meeting will be held at a time requested by the person or persons calling the
meeting, not less than 15 nor more than 60 days after the receipt of the
request. If the notice is not given within 20 days after receipt of the request,
the persons entitled to call the meeting may give the notice.
Section 4. Notice of Meetings. Written notice of the place, date, and time
of all meetings of the stockholders shall be given, not less than ten (10) nor
more than sixty (60) days before the date on which the meeting is to be held, to
each stockholder entitled to vote at such meeting, except as
1
otherwise provided herein or as required from time to time by the Delaware
General Corporation Law or the Certificate of Incorporation.
Section 5. Quorum; Adjournment. At any meeting of the stockholders, the
holders of a majority of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by law or the Certificate of Incorporation. Where a separate
vote by a class, classes or series is required, a majority of the outstanding
shares of such class, classes or series, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to that
vote on that matter, unless or except to the extent that the presence of a
larger number may be required by law or the Certificate of Incorporation. If a
quorum shall fail to attend any meeting, the chairman of the meeting or the
holders of a majority of the shares of stock entitled to vote who are present,
in person or by proxy, may adjourn the meeting to another place, date or time
without notice other than announcement at the meeting, until a quorum shall be
present or represented.
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days
after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date and
time of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 6. Organization. At every meeting of the shareholders, the
chairman of the board, if there be one, or in the case of a vacancy in the
office or absence of the chairman of the board, one of the following persons
present in the order stated shall act as chairman of the meeting: the vice
chairman of the board, if there be one, the president, the vice presidents in
their order of rank or seniority, a chairman designated by the board of
directors or a chairman chosen by the stockholders in the manner provided in
Section 5 of this Article II. The secretary, or in his absence, an assistant
secretary, or in the absence of the secretary and the assistant secretaries, a
person appointed by the chairman of the meeting, shall act as secretary.
Section 7. Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established for the
meeting.
Each stockholder shall have one vote for every share of stock entitled to
vote which is registered in his name on the record date for the meeting, except
as otherwise provided herein or required by law or the Certificate of
Incorporation.
All voting, including on the election of directors but excepting where
otherwise provided herein or required by law or the Certificate of
Incorporation, may be by a voice vote; provided,
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however, that upon demand therefor by a stockholder entitled to vote or such
stockholder's proxy, a stock vote shall be taken. Every stock vote shall be
taken by ballots, each of which shall state the name of the stockholder or proxy
voting and such other information as may be required under the procedure
established for the meeting. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the Board of Directors.
All elections of directors shall be determined by a plurality of the votes
cast, and except as otherwise required by law or the Certificate of
Incorporation, all other matters shall be determined by a majority of the votes
cast.
Section 8. Stock List. A complete list of stockholders entitled to vote at
any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in such stockholder's name, shall be open to the examination of any
such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which places
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any stockholder who
is present. This list shall presumptively determine the identity of the
stockholder entitled to vote at the meeting and the number of shares held by
each of them.
Section 9. Inspectors of Election. In advance of any meeting of
stockholders, the Board of Directors may appoint inspectors of election, who
need not be stockholders, to act at such meeting or any adjournment thereof. If
inspectors of election are not so appointed, the person presiding at any such
meeting may, and on the request of any stockholder entitled to vote at the
meeting and before voting begins shall, appoint inspectors of election. The
number of inspectors shall be either one or three, as determined, in the case of
inspectors appointed upon demand of a stockholder, by the stockholders in the
manner provided in Section 5 of this Article II, and otherwise by the Board of
Directors or person presiding at the meeting, as the case may be. If any person
who is appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board of Directors in advance of the meeting, or at the
meeting by the person presiding at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take an oath faithfully to execute the
duties of inspector at such meeting.
If inspectors of election are appointed as aforesaid, they shall determine
from the lists referred to in Section 8 of this Article II the number of shares
outstanding, the shares represented at the meeting, the existence of a quorum,
and the voting power of shares represented at the meeting, determine the
authenticity, validity and effect of proxies, receive votes or ballots, hear and
determine all challenges and questions in any way arising in connection with the
right to vote or the number of votes which may be cast, count and tabulate all
votes or ballots, determine the results, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders entitled to vote
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thereat. If there be three inspectors of election, the decision, act or
certificate of both shall be effective in all respects as the decision, act or
certificate of both.
Unless waived by vote of the stockholders conducted in the manner which is
provided in Section 5 of this Article II, the inspectors shall make a report in
writing of any challenge or question or matter which is determined by them, and
execute a sworn certificate of any facts found by them.
Section 10. Actions by Stockholders. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered office in this State,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery to a Corporation's registered office shall be by certified or
registered mail, return receipt requested. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
III
BOARD OF DIRECTORS
Section 1. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by law or by the Certificate of Incorporation or by these By-laws directed
or required to be exercised or done by the stockholders. The use of the phrase
"Whole Board" herein refers to the total number of directors which the
corporation would have if there were no vacancies.
Section 2. Number and Term in Office. A director need not be a
stockholder, a citizen of the United States or a resident of the State of
Delaware. The authorized number of directors constituting the Board of Directors
shall consist of one person. Thereafter, the number of directors constituting
the Whole Board shall be at least one. Subject to the foregoing limitation and
except for the first Board of Directors, such number may be fixed from time to
time by action of the stockholders or of the directors, or, if the number is not
fixed, the number shall be one. The number of directors may be increased or
decreased by action of stockholders or of the directors. Except as provided in
Section 3 of this Article III, directors shall be elected by the holders of
record of a plurality of the votes cast at Annual Meetings of Stockholders, and
each director so elected shall hold office until the next Annual Meeting and
until his or her successor is duly elected and qualified, or until his or her
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earlier resignation or removal. Any director may resign at any time upon written
notice to the Corporation.
Section 3. Vacancies. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director or by the stockholders entitled to vote at any Annual or
Special Meeting held in accordance with Article II, and the directors so chosen
shall hold office until the next Annual or Special Meeting duly called for that
purpose and until their successors are duly elected and qualified, or until
their earlier resignation or removal.
Section 4. Nominations of Directors; Election. Nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors, or by any stockholder entitled to vote
generally in the election of directors who complies with the procedures set
forth in this Section 4. Directors shall be at least 21 years of age. Directors
need not be stockholders. At each meeting of stockholders for the election of
directors at which a quorum is present, the persons receiving a plurality of the
votes cast shall be elected directors. All nominations by stockholders shall be
made pursuant to timely notice in proper written form to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 30 days nor more than 60 days prior to the meeting; provided, however,
that in the event that less than 40 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper
written form, such stockholder's notice shall set forth in writing (i) as to
each person whom the stockholder proposes to nominate for election or
re-election as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, including, without limitation, such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected; and (ii) as to the stockholder giving the
notice (x) the name and address, as they appear on the Corporation's books, of
such stockholder and (y) the class and number of shares of the Corporation which
are beneficially owned by such stockholder.
Section 5. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. The first meeting of each newly-elected Board of Directors shall be
held immediately following the Annual Meeting of Stockholders and no notice of
such meeting shall be necessary to be given the newly-elected directors in order
legally to constitute the meeting, provided a quorum shall be present. Regular
meetings of the Board of Directors may be held without notice at such time and
at such place as may from time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman of the
Board, the President or at least one of the directors then in office. Notice
thereof stating the place, date and hour of the meetings shall be given to each
director by mail, telephone or telegram not less than seventy-two (72) hours
before the date of the meeting. Meetings may be held
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at any time without notice if all the directors are present or if all those not
present waive such notice in accordance with Section 2 of Article VI of these
By-laws.
Section 6. Quorum. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-laws, at all meetings of the
Board of Directors, a majority of the directors then in office shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 7. Action of Board Without a Meeting. Unless otherwise provided by
the Certificate of Incorporation or these By-laws, any action required or
permitted to be taken at any meeting of the Board of Directors of any committee
thereof may be taken without a meeting if all members of the Board of Directors
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 8. Resignations. Any director of the Corporation may resign at any
time by giving written notice to the president or the secretary. 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 9. Organization. At every meeting of the Board of Directors, the
Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following officers
present in the order stated shall act as Chairman of the meeting: the president,
the vice presidents in their order of rank and seniority, or a chairman chosen
by a majority of the directors present. The secretary, or, in his absence, an
assistant secretary, or in the absence of the secretary and the assistant
secretaries, any person appointed by the Chairman of the meeting shall act as
secretary.
Section 10. Committees. The Board of Directors may, by resolution passed
by a majority of the directors then in office, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, whom may replace any absent or disqualified member at any
meeting of any such committee. In the absence or disqualification of a member of
a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of any such absent
or disqualified member. Any committee, to the extent allowed by law and provided
in the By-laws or resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
6
require it. Each committee shall keep regular minutes and reports to the Board
of Directors when required.
Section 11. Compensation. Unless otherwise restricted by the Certificate
of Incorporation or these By-laws, the Board of Directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 12. Removal. Unless otherwise restricted by the Certificate of
Incorporation or these By-laws, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of shares
entitled to vote at an election of directors.
IV
OFFICERS
Section 1. General. The officers of the Corporation shall be appointed by
the Board of Directors and shall consist of a Chairman of the Board or a
President, or both, one or more Vice Presidents, a Treasurer and a Secretary.
The Board of Directors may also choose one or more assistant secretaries and
assistant treasurers, and such other officers and agents as the Board of
Directors, in its sole and absolute discretion shall deem necessary or
appropriate as designated by the Board of Directors from time to time. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-laws provide otherwise.
Section 2. Election; Term of Office. The Board of Directors at its first
meeting held after each Annual Meeting of Stockholders shall elect a Chairman of
the Board or a President, or both, one or more Vice Presidents, a Secretary and
a Treasurer, and may also elect at that meeting or any other meeting, such other
officers and agents as it shall deem necessary or appropriate. Each officer of
the Corporation shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors together with the powers
and duties which are customarily exercised by such officer; and each officer of
the Corporation shall hold office until such officer's successor is elected and
qualified or until such officer's earlier resignation or removal. Any officer
may resign at any time upon written notice to the Corporation. The Board of
Directors may at any time, with or without cause, by the affirmative vote of a
majority of directors then in office, remove an officer.
Section 3. Chairman of the Board. The Chairman of the Board, if there be
such an officer, shall be the chief executive officer of the Corporation. The
Chairman of the Board shall preside at all meetings of the stockholders and the
Board of Directors and shall have such other duties and powers as may be
prescribed by the Board of Directors from time to time.
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Section 4. President. The President shall be the chief operating officer
of the Corporation, shall have general and active management of the business of
the Corporation, having general control of the business and affairs of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall have and exercise such
further powers and duties as may be specifically delegated to or vested in the
President from time to time by these By-laws or the Board of Directors. In the
absence of the Chairman of the Board or in the event of his inability or refusal
to act, or if the Board has not designated a Chairman, the President shall
perform the duties of the Chairman of the Board, and when so acting, shall have
all the powers and be subject to all of the restrictions upon the Chairman of
the Board.
Section 5. Vice President. In the absence of the President or in the event
of his inability or refusal to act, the Vice President (or in the event that
there be more than one vice president, the vice presidents in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election) shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The vice presidents shall perform such other
duties and have such other powers as the Board of Directors or the President may
from time to time prescribe.
Section 6. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given notice of meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the President. If the
Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or
any Assistant Secretary, if there be one, shall have authority to affix same to
any instrument requiring it and when so affixed, it may be attested to by the
signature of the Secretary or by the signature of any such Assistant Secretary.
The Board of Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest to the affixing by his or her
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
Section 7. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep complete and accurate accounts of
all receipts and disbursements of the Corporation, and shall deposit all monies
and other valuable effects of the Corporation in its name and to its credit in
such banks and other depositories as may be designated from time to time by the
Board of Directors. The Treasurer shall disburse the funds of the Corporation,
taking proper vouchers and receipts for such disbursements, and shall render to
the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all his or her transactions
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as Treasurer and of the financial condition of the Corporation. The Treasurer
shall, when and if required by the Board of Directors, give and file with the
Corporation a bond, in such form and amount and with such surety or sureties as
shall be satisfactory to the Board of Directors, for the faithful performance of
his or her duties as Treasurer. The Treasurer shall have such other powers and
perform such other duties as the Board of Directors or the President shall from
time to time prescribe.
Section 8. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
Section 9. Resignations. Any officer may resign at any time by giving
written notice to the Corporation; provided, however, that notice to the Board
of Directors, the Chairman of the Board, the President or the Secretary shall be
deemed to constitute notice to the Corporation. Such resignation shall take
effect upon 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 10. Removal. Any officer or agent may be removed, either with or
without cause, at any time, by the Board of Directors at any meeting called for
that purpose; provided, however, that the President may remove any agent
appointed by him.
Section 11. Vacancies. Any vacancy among the officers, whether caused by
death, resignation, removal or any other cause, shall be filled in the manner
which is prescribed for election or appointment to such office.
V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board or the President or a Vice President and (ii)
by the Treasurer or Secretary of the Corporation, certifying the number of
shares owned by such holder in the Corporation.
Section 2. Signatures. Any or all the signatures on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
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Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such owner's legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by such person's attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
Section 7. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman of the Board, the President, any Vice
President or the Secretary and any such officer may, in the name of and on
behalf of the Corporation take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of security holders of
any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and powers incident to
the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
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VI
NOTICES
Section 1. Notice. Whenever, under the provisions of the laws of this
state or the Certificate of Incorporation or these By-laws, any notice, request,
demand or other communication is required to be or may be given or made to any
officer, director, or registered stockholder, it shall not be construed to mean
that such notice, request, demand or other communication must be given or made
in person, but the same may be given or made by mail, telegraph, cablegram,
telex, or telecopier to such officer, director or registered stockholder. Any
such notice, request, demand or other communication shall be considered to have
been properly given or made, in the case of mail, telegraph or cable, when
deposited in the mail or delivered to the appropriate office for telegraph or
cable transmission, and in other cases when transmitted by the party giving or
making the same, directed to the officer or director at his address as it
appears on the records of the Corporation or to a registered stockholder at his
address as it appears on the record of stockholders, or, if the stockholder
shall have filed with the Secretary of the Corporation a written request that
notices to him be mailed to some other address, then directed to the stockholder
at such other address. Notice to directors may also be given in accordance with
Section 5 of Article III hereof.
Whenever, under the provisions of the laws of this state or the
Certificate of Incorporation or these By-laws, any notice, request, demand or
other communication is required to be or may be given or made to the
Corporation, it shall also not be construed to mean that such notice, request,
demand or other communication must be given or made in person, but the same may
be given or made to the Corporation by mail, telegraph, cablegram, telex, or
telecopier. Any such notice, request, demand or other communication shall be
considered to have been properly given or made, in the case of mail, telegram or
cable, when deposited in the mail or delivered to the appropriate office for
telegraph or cable transmission.
Section 2. Waivers of Notice. Whenever any written notice is required to
be given under the provisions of the Certificate of Incorporation, these By-laws
or a statute, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any meeting,
without protesting prior to the conclusion of the meeting the lack of notice of
such meeting, shall constitute a waiver of notice of such meeting.
VII
GENERAL PROVISIONS
11
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting or by any
Committee of the Board of Directors having such authority at any meeting
thereof, and may be paid in cash, in property, in shares of the capital stock,
or in any combination thereof. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All notes, checks, drafts and orders for the
payment of money issued by the Corporation shall be signed in the name of the
Corporation by such officers or such other persons as the Board of Directors may
from time to time designate.
Section 3. Corporation Seal. The corporate seal, if the Corporation shall
have a corporate seal, shall have inscribed thereon the name of the Corporation,
the year of its organization and the words "Corporate Seal, Delaware". The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
VIII
INDEMNIFICATION
Section 1. Indemnification of Directors and Officers in Third Party
Proceedings. The Corporation shall indemnify any director or officer of the
Corporation who was or is an "authorized representative" of the Corporation
(which shall mean for the purposes of this Article a director or officer of the
Corporation, or a person serving at the request of the Corporation as a
director, officer, partner or trustee of another corporation, partnership, joint
venture, trust or other enterprise) and who was or is a "party" (which shall
include for purposes of this Article the giving of testimony or similar
involvement) or is threatened to be made a party to any "third party proceeding
" (which shall mean for purposes of this Article any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the Corporation) by
reason of the fact that such person was or is an authorized representative of
the Corporation, against expenses (which shall include for purposes of this
Article attorney's fees and disbursements), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such third party proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in, or not opposed to, the
best interests of the Corporation and, with respect to a criminal third party
proceeding (which shall include for purposes of this Article any investigation
which could or does lead to a criminal third party proceeding) had not
reasonable cause to believe such conduct was unlawful. The termination of any
third party proceeding by judgment, order, settlement, indictment, conviction or
upon a plea of no contest or its equivalent, shall not, of itself, create a
presumption that the authorized representative
12
did not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal third party proceeding, had reasonable cause to believe
that such conduct was unlawful.
Section 2. Indemnification of Directors and Officers in Corporate
Proceedings. The Corporation shall indemnify any director or officer of the
Corporation who was or is an authorized representative of the Corporation and
who was or is a party or is threatened to be made a party to any "corporate
proceeding" (which shall mean for purposes of this Article any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor or any investigative proceeding by or on behalf
of the Corporation) by reason of the fact that such person was or is an
authorized representative of the Corporation, against expenses (including
attorneys' fees and disbursements) actually and reasonably incurred by such
person in connection with the defense or settlement of such corporate proceeding
if such person acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of such person's duty to the
Corporation unless and only to the extent that the court in which such corporate
proceeding was pending shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
authorized representative is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
Section 3. Indemnification of Authorized Representatives. To the extent
that an authorized representative of the Corporation who neither was nor is a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any third party or corporate proceeding or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses actually and reasonably incurred by such person in connection
therewith. Such an authorized representative may, at the discretion of the
Corporation, be indemnified by the Corporation in any other circumstances to any
extent if the Corporation would be required by Section 1 or 2 of this Article
VIII to indemnify such person in such circumstances to such extent as if such
person were or had been a director or officer of the Corporation.
Section 4. General Terms. Any indemnification under Section 1 and Section
2 of this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he had met the applicable standard of conduct set forth in
Section 1 and Section 2 of this Article VIII. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in written
opinion, or (iii) by the stockholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of
13
an undertaking by or on behalf of the director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation as authorized in these By-laws.
Section 5. Amendment. Any amendment to Article VIII shall not apply to any
liability of a director, officer, employee or agent arising out of a transaction
or omission occurring prior to the adoption of such amendment, but any such
liability based on a transaction or omission occurring prior to the adoption of
such amendment shall be governed by Article VIII of these By-laws, as in effect
at the time of such transaction or omission.
Section 6. Insurance and Trust Fund. In furtherance and not in limitation
of the powers conferred by statute:
(1) the Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of law; and
(2) the Corporation may create a trust fund, grant a security interest
and/or use other means (including, without limitation, letters of credit, surety
bonds and/or other similar arrangements), as well as enter into contracts
providing indemnification to the fullest extent permitted by law and including
as part thereof provisions with respect to any or all of the foregoing, to
ensure the payment of such amount as may become necessary to effect
indemnification as provided therein, or elsewhere.
Section 7. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, including the right to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section or otherwise with respect to
the indemnification and advancement of expenses of directors and officers of the
Corporation.
IX
AMENDMENTS
Except as otherwise specifically stated within an Article to be altered,
amended or repealed, these By-laws may be altered, amended or repealed and new
By-laws may be adopted at any meeting of the Board of Directors or of the
stockholders, provided notice of the proposed change was given in the notice of
the meeting.
14
LOAN AGREEMENT
LOAN AGREEMENT ENTERED INTO IN THE CITY OF MONTREAL, PROVINCE OF QUEBEC, THIS
29TH DAY OF SEPTEMBER 2000.
BY AND BETWEEN: ANAGRAMPLUS, INC., a legal person duly incorporated pursuant
to the law of Delaware, hereto represented by Paul Michelin
and hereinafter referred to as:
"LENDER"
AND: PRODIJEUX INC., a legal person, duly incorporated pursuant to
the laws of the province of Quebec, Canada, hereto represented
by its President Michel Chiarore and hereinafter referred to
as:
"BORROWER"
1. Principal. The LENDER hereby agrees to lend to the BORROWER the principal
amount of CDN$500 000 (the "Loan") same to be disbursed in increments and
at times to be agreed by the parties.
2. Interest. The BORROWER binds and obliges itself to repay the Loan to the
LENDER, together with interest calculated, on amounts advanced, at the
rate of seven percent (7%) per annum, within thirty (30) days of the
receipt by the BORROWER of a written demand for repayment. All interest
shall be compounded monthly and all overdue principal and interest shall
bear interest at the same rate calculated from the due date thereof.
Notwithstanding the foregoing, the BORROWER shall not be entitled to any
such notice or delay for repayment and the Loan shall be due and payable
on demand in the event of:
(a) the receipt by the BORROWER of notice from any financial
institution that any loan or advance made to the BORROWER is
being called or any granting of credit by any financial
institution withdrawn or substantially reduced; or
(b) the BORROWER becoming insolvent or making an assignment in
bankruptcy or seeking protection from its creditors under the
provisions of any federal or provincial statute relating to
insolvency;
3. Repayment. The LENDER hereby agrees that repayment of the Loan, together
with any interest thereon, shall be repaid in accordance with the schedule
annexed hereto as Exhibit "A", upon the earlier of:
(a) the date upon which the BORROWER has achieved sales of at least
fifty thousand (50,000) units of the board game AnagramPlus; or
Page 2
(b) October 1, 2002;
For purposes of Subparagraph 3(a), "AnagramPlus" shall mean any and all
versions and editions (including the junior edition) of the board game
known as AnagramPlus in any language and in any format, including but not
limited to the regular board game format and CDROM format;
For purposes of Sub-paragraph 3(a) "sales" shall mean the number of units
sold by BORROWER or any subsidiaries or affiliated or related companies in
any manner or via any means, including but not limited to sales to
distributor(s), at retail and via e-commerce less the number, if any, of
units returned by such distributor(s), retailers or any buyers.
4. Early repayment. The BORROWER shall have the right to prepay the whole or
any part of the Loan, including any interest thereon, prior to the dates
set forth in Paragraph 3 hereof without notice or penalty;
5. Security. In order to secure payment of the Loan and all interest thereon,
the BORROWER hereby grants to the LENDER a moveable hypothec on the
BORROWER's right, title and interest in and to the board game known as
AnagramPlus as well as any other versions thereof and any improvements
thereon, including any intellectual property rights related thereto, such
as but not limited to patent rights, copyright or trademark rights
irrespective of if or when registration for such rights was first sought
or first obtained. The parties agree that the LENDER shall cause the
moveable hypothec granted hereto to be registered in the registry of
moveable property. The parties agree that the LENDER shall have the right
to register security on any future games developed by the BORROWER as well
as any intellectual property rights related thereto, such as but not
limited to patent rights, copyright or trademark rights irrespective of if
or when registration for such rights was first sought or first obtained.
The parties agree that this Paragraph 5 shall apply mutatis mutanda to any
jurisdiction in which the Lender, at its discretion, chooses to register
similar security.
6. Execution of documents. The parties agree to sign all such further deeds,
documents, writings or corporate resolutions necessary or desirable to
give full force and effect to the terms and conditions of this Loan
Agreement.
7. Entire agreement; amendment. This Loan Agreement constitutes the full and
complete understanding and agreement of the parties with regard to the
subject matter thereof and supersedes all prior understandings and
agreements with respect thereto. The parties further agree that this Loan
Agreement can be changed or modified only via written instrument
indicating the consent of both parties to such change or modification.
8. Notices. The parties agree that any notice required to be given pursuant
to this Loan Agreement shall be provided in writing by registered mail or
if provided by facsimile, with confirmation by messenger.
Page 3
9. Assignment. This Loan Agreement may not be assigned by either party
without the prior written consent of the other party, such consent not to
be unreasonably withheld.
10. Governing law. This Loan Agreement shall be interpreted according to the
laws of the Province of Quebec and the laws of Canada as applied therein.
11. Language. Each of the undersigned acknowledges that they have requested
and are satisfied that this Agreement be drawn in English. Chacun des
soussignes reconnait qu'il a exige que cette entente soit redigee en
anglais et s'en declare satisfait.
EXECUTED AT MONTREAL, THIS 29th DAY OF SEPTEMBER 2000
PRODIJEUX INC. ANAGRAMPLUS, INC.
/s/ Michel Chiarore /s/ Paul Michelin
- ------------------------ -------------------------
Per: Michel Chiarore Per: Paul Michelin
Title: President Title: President
[SEAL] [GRAPHIC OMITTED] [SEAL]
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
ANAGRAM PLUS, INC.
TOTAL AUTHORIZED ISSUE 22,000,000 SHARES
20,000,000 SHARES PAR VALUE $0.001 EACH 2,000,000 SHARES PAR VALUE $0.01 EACH
COMMON STOCK PREFERRED STOCK
SPECIMEN
This is to Certify that ________________________________________ is the owner of
________________________________________________________________________________
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF
ANAGRAM PLUS, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized, Attorney upon surrender of this Certificate properly
endorsed.
Witness, the seal of the Corporation and the signatures of its duly authorized
officers.
Dated
___________________________________ ________________________________
SECRETARY PRESIDENT
[SEAL]
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties.
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - Custodian
------------------------------------------------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
----------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list
For value received ________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________
|
__________________________|_____________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING
POSTAL ZIP CODE OR ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ___________________________________________________________Attorney to
transfer the said Shares on the books of the within named Corporation with full
power of substitution in the premises.
Dated _________________________________________
In presence of
_______________________________
_______________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OF [ILLEGIBLE]