Exhibit No. 2/ AFGL International, Inc./ Form S-3
BYLAWS
OF
AFGL INTERNATIONAL, INC.
ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office
shall be in the city of Reno, county of Washoe, state of Nevada.
Section 1.02. Locations of Offices. The corporation may
also have offices at such other places both within and without
the state of Nevada as the board of directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
STOCKHOLDERS
Section 2.01. Annual Meeting. The annual meeting of the
stockholders shall be held on the second Tuesday of the third
month following the anniversary of incorporation or at such other
time designated by the board of directors and as is provided for
in the notice of the meeting; provided, that whenever such date
falls on a legal holiday, the meeting shall be held on the next
succeeding business day, beginning with the year following the
filing of the articles of incorporation, for the purpose of
electing directors and for the transaction of such other business
as may come before the meeting. If the election of directors
shall not be held on the day designated herein for the annual
meeting of the stockholders, or at any adjournment thereof, the
board of directors shall cause the election to be held at a
special meeting of the stockholders as soon thereafter as may be
convenient.
Section 2.02. Special Meetings. Special meetings of the
stockholders may be called at any time by the chairman of the
board, the president, or by the board of directors, or in their
absence or disability, by any vice president.
Section 2.03. Place of Meetings. The board of directors
may designate any place, either within or without the state of
incorporation, as the place of meeting for any annual meeting or
for any special meeting called by the board of directors. A
waiver of notice signed by all stockholders entitled to vote at a
meeting may designate any place, either within or without the
state of incorporation, as the place for the holding of such
meeting. If no designation is made, the place of meeting shall
be at the principal office of the corporation.
Section 2.04. Notice of Meetings. The secretary or
assistant secretary, if any, shall cause notice of the time,
place and purpose or purposes of all meetings of the stockholders
(whether annual or special), to be mailed at least ten (but not
more than 60) days prior to the meeting, to each stockholder of
record entitled to vote.
Section 2.05. Waiver of Notice. Any stockholder may waive
notice of any meeting of stockholders (however called or noticed,
whether or not called or noticed and whether before, during, or
after the meeting), signing a written waiver of notice or a
consent to the holding of such meeting, or an approval of the
minutes thereof. Attendance at a meeting, in person or by proxy,
shall constitute waiver of all defects of notice regardless of
whether waiver, consent, or approval is signed or any objections
are made, unless attendance is solely for the purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. All such waivers, consents, or approvals shall be made
a part of the minutes of the meeting.
Section 2.06. Fixing Record Date. For the purpose of
determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or
stockholder entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise
any rights in respect to 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 date as the record date for any
such determination of stockholders, such date in any case to be
not more than 60 days and, in case of a meeting of stockholders,
not less than 10 days prior to the date on which the particular
action requiring such determination of stockholders is to be
taken. If no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting, the
day preceding the date on which notice of the meeting is mailed
shall be the record date. For any other purpose, the record date
shall be the close of business on the date on which the
resolution of the board of directors pertaining thereto is
adopted. When a determination of stockholders entitled to vote
at any meeting of stockholders has been made as provided in this
section, such determination shall apply to any adjournment
thereof. Failure to comply with this section shall not affect
the validity of any action taken at a meeting of stockholders.
Section 2.07. Voting Lists. The officers of the
corporation shall cause to be prepared from the stock ledger at
least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at such meeting or any
adjournment thereof, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by
any stockholder who is present. The original stock ledger shall
be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section, or
the books of the corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 2.08. Quorum. Stock representing one-third of the
voting power of all outstanding stock of the corporation entitled
to vote, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute
or by the certificate of incorporation. If, however, such quorum
shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall
be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified.
If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.09. Vote Required. Except as provided in section
3.01 of these bylaws regarding election of directors, when a
quorum is present at any meeting, the vote of the holders of
stock having a majority of the voting power present in person or
represented by proxy shall decide any question brought before
such meeting, unless the question is one on which by express
provision of the statutes of the state of Nevada or of the
articles of incorporation a different vote is required, in which
case such express provision shall govern and control the decision
of such question.
Section 2.10. Voting of Stock. Unless otherwise provided
in the articles of incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or
by proxy for each share of the capital stock having voting power
held by such stockholder, subject to the modification of such
voting rights of any class or classes of the corporation's
capital stock by the articles of incorporation.
Section 2.11. Proxies. At each meeting of the
stockholders, each stockholder entitled to vote shall be entitled
to vote in person or by proxy; provided, however, that the right
to vote by proxy shall exist only in case the instrument
authorizing such proxy to act shall have been executed in writing
by the registered holder or holders of such stock, as the case
may be, as shown on the stock ledger of the corporation or by his
attorney thereunto duly authorized in writing. Such instrument
authorizing a proxy to act shall be delivered at the beginning of
such meeting to the secretary of the corporation or to such other
officer or person who may, in the absence of the secretary, be
acting as secretary of the meeting. In the event that any such
instrument shall designate two or more persons to act as proxy, a
majority of such persons present at the meeting, or if only one
be present, that one shall (unless the instrument shall otherwise
provide) have all of the powers conferred by the instrument on
all persons so designated. Persons holding stock in a fiduciary
capacity shall be entitled to vote the stock so held and the
persons whose shares are pledged shall be entitled to vote,
unless the transfer by the pledgor in the books and records of
the corporation shall have expressly empowered the pledgee to
vote thereon, in which case the pledgee, or his proxy, may
represent such stock and vote thereon. No proxy shall be voted
or acted on after three years from its date, unless the proxy
provides for a longer period.
Section 2.12. Written Consent to Action by Stockholders.
Unless otherwise provided in the articles of incorporation, any
action required to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken
at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice, and without a
vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
ARTICLE III
DIRECTORS
Section 3.01. Number, Term, and Qualifications. The number
of directors which shall constitute the whole board shall be not
less than three nor more than nine. Within the limits above
specified, the number of directors shall be determined by
resolution of the board of directors or by the stockholders at
the annual meeting of the stockholders or a special meeting
called for such purpose, except as provided in section 3.02 of
this article, and each director elected shall hold office until
his successor is elected and qualified. The election of each
director at an annual or special stockholders' meeting shall be
by a plurality of the votes cast for the nominees to each
directorship voted on separately. Directors need not be
residents of the state of incorporation or stockholders of the
corporation. Anything else in this Section 3.01 to the contrary
notwithstanding, two directors shall be designated by Foote, Cone
& Belding Communications, Inc. ("FCB").
Section 3.02. Vacancies and New Created Directorships.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify. If there
are no directors in office, then an election of directors may be
held in the manner provided by statute.
Section 3.03. General Powers. The business of the
corporation shall be managed under the direction of its board of
directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or
by the articles of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
Section 3.04. Regular Meetings. A regular meeting of the
board of directors shall be held without other notice than this
bylaw immediately following and at the same place as the annual
meeting of stockholders. The board of directors may provide by
resolution the time and place, either within or without the state
of incorporation, for the holding of additional regular meetings
without other notice than such resolution.
Section 3.05. Special Meetings. Special meetings of the
board of directors may be called by or at the request of the
president, vice president, or any two directors. The person or
persons authorized to call special meetings of the board of
directors may fix any place, either within or without the state
of incorporation, as the place for holding any special meeting of
the board of directors called by them.
Section 3.06. Meetings by Telephone Conference Call.
Members of the board of the board of directors may participate in
a meeting of the board of directors or a committee of the board
of directors by means of conference telephone or similar
communication equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
Section 3.07. Notice. Notice of any special meeting shall
be given at least five days prior thereto by written notice
delivered personally or mailed to each director at his regular
business address or residence, or by telegram. If mailed, such
notice shall be deemed to be delivered when deposited in the
United States mail so addressed, with postage thereon prepaid.
If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph
company. Any director may waive notice of any meeting.
Attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a
meeting solely for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully
called or convened.
Section 3.08. Quorum. A majority of the number of
directors shall constitute a quorum for the transaction of
business at any meeting of the board of directors, but if less
than a majority is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice.
Section 3.09. Manner of Acting. The act of a majority of
the directors present at a meeting at which a quorum is present
shall be the act of the board of directors, and individual
directors shall have no power as such.
Section 3.10. Compensation. By resolution of the board 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.
Section 3.11. Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors
at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting, unless he shall
file his written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof, or
shall forward such dissent by registered or certified mail to the
secretary of the corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 3.12. Resignations. A director may resign at any
time by delivering a written resignation to either the president,
a vice president, the secretary, or assistant secretary, if any.
The resignation shall become effective on its acceptance by the
board of directors; provided, that if the board has not acted
thereon within ten days from the date presented, the resignation
shall be deemed accepted.
Section 3.13. Written Consent to Action by Directors. Any
action required to be taken at a meeting of the directors of the
corporation or any other action which may be taken at a meeting
of the directors or of a committee, may be taken without a
meeting, if a consent in writing, setting forth the action so
taken, shall be signed by all of the directors, or all of the
members of the committee, as the case may be. Such consent shall
have the same legal effect as a unanimous vote of all the
directors or members of the committee.
Section 3.14. Removal. At a meeting expressly called for
that purpose, one or more directors may be removed by a vote of a
majority of the shares of outstanding stock of the corporation
entitled to vote at an election of directors.
ARTICLE IV
OFFICERS
Section 4.01. Number and Qualifications. The officers of
the corporation shall be a president, a secretary and a
treasurer. Any two or more offices may be held by the same
person. Such officers shall be elected from time to time by the
board of directors, each to hold office until the meeting of the
board following the next annual meeting of the stockholders, or
until his successor shall have been duly elected and shall have
qualified, or until his death, or until he shall have resigned or
until he shall have been removed, as hereinafter provided in
these bylaws. The board of directors may from time to time
appoint such other officers (including a chairman of the board
and one or more vice presidents, assistant treasurers and
assistant secretaries) and such agents as it may deem necessary
or desirable for the business of the corporation. The board of
directors may from time to time authorize any principal officer
or committee to appoint, and to prescribe the authority and
duties of, any such subordinate officers or agents. Each of such
other officers and agents shall have such authority, perform such
duties, and hold office for such period, as are provided in these
bylaws or as may be prescribed by the board of directors or by
the principal officer or committee appointing such officer or
agent.
Section 4.02. Election, Term of Office, and Qualifications.
The officers shall be chosen by the board of directors annually
at its annual meeting. In the event of failure to choose
officers at an annual meeting of the board of directors, officers
may be chosen at any regular or special meeting of the board of
directors. Each such officer (whether chosen at an annual
meeting of the board of directors to fill a vacancy or otherwise)
shall hold his office until the next ensuing annual meeting of
the board of directors and until his successor shall have been
chosen and qualified, or until his death or until his resignation
or removal in the manner provided in these bylaws. Any one
person may hold any two or more of such offices. No person
holding two or more offices shall act in or execute any
instrument in the capacity of more than one office. The chairman
of the board, if any, shall be and remain director of the
corporation during the term of his office. No other officer need
be a director.
Section 4.03. Subordinate Officers, Etc. The board of
directors from time to time may appoint such other officers or
agents as it may deem advisable, each of whom shall have such
title, hold office for such period, have such authority, and
perform such duties as the board of directors from time to time
may determine. The board of directors from time to time may
delegate to any officer or agent the power to appoint any such
subordinate officer or agents and to prescribe their respective
titles, terms of office, authorities, and duties. Subordinate
officers need not be stockholders or directors.
Section 4.04. Resignations. Any officer may resign at any
time by delivering a written resignation to the board of
directors, the president, or the secretary. Unless otherwise
specified therein, such resignation shall take effect on
delivery.
Section 4.05. Removal. Any officer may be removed from
office at any special meeting of the board of directors called
for that purpose or at a regular meeting, by the vote of a
majority of the directors, with or without cause. Any officer or
agent appointed in accordance with the provisions of section 4.03
hereof may also be removed, either with or without cause, by any
officer on whom such power of removal shall have been conferred
by the board of directors.
Section 4.06. Vacancies and Newly Created Offices. If any
vacancy shall occur in any office by reason of death,
resignation, removal, disqualification, or any other cause, or if
a new office shall be created, then such vacancies or newly
created offices may be filled by the board of directors at any
regular or special meeting.
Section 4.07. The Chairman of the Board. The chairman of
the board, if there be such an officer, shall have the following
powers and duties:
(a) He shall preside at all stockholders' meetings;
(b) He shall preside at all meetings of the board of
directors; and
(c) He shall be a member of the executive committee, if
any.
Section 4.08. The President. The president shall have the
following powers and duties:
(a) If no general manager has been appointed, he shall be
the chief executive officer of the corporation and, subject to
the direction of the board of directors, shall have general
charge of the business, affairs, and property of the corporation
and general supervision over its officers, employees, and agents;
(b) If no chairman of the board has been chosen, or if such
officer is absent or disabled, he shall preside at meetings of
the stockholders and board of directors;
(c) He shall be a member of the executive committee, if
any;
(d) He shall be empowered to sign certificates representing
stock of the corporation, the issuance of which shall have been
authorized by the board of directors; and
(e) He shall have all power and perform all duties normally
incident to the office of a president of a corporation and shall
exercise such other powers and perform such other duties as from
time to time may be assigned to him by the board of directors.
Section 4.09. The Vice Presidents. The board of directors
may, from time to time, designate and elect one or more vice
presidents, one of whom may be designated to serve as executive
vice president. Each vice president shall have such powers and
perform such duties as from time to time may be assigned to him
by the board of directors or the president. At the request or in
the absence or disability of the president, the executive vice
president or, in the absence or disability of the executive vice
president, the vice president designated by the board of
directors or (in the absence of such designation by the board of
directors) by the president, as senior vice president, may
perform all the duties of the president, and when so acting,
shall have all the powers of and be subject to all the
restrictions on, the president.
Section 4.10. The Secretary. The secretary shall have the
following powers and duties:
(a) He shall keep or cause to be kept a record of all of
the proceedings of the meetings of the stockholders and of the
board of directors in books provided for that purpose;
(b) He shall cause all notices to be duly given in
accordance with the provisions of these bylaws and as required by
statute;
(c) He shall be the custodian of the records and of the
seal of the corporation, and shall cause such seal (or a
facsimile thereof) to be affixed to all certificates representing
stock of the corporation prior to the issuance thereof and to all
instruments, the execution of which on behalf of the corporation
under its seal shall have been duly authorized in accordance with
these bylaws, and when so affixed, he may attest the same;
(d) He shall see that the books, reports, statements,
certificates, and other documents and records required by statute
are properly kept and filed;
(e) He shall have charge of the stock ledger and books of
the corporation and cause such books to be kept in such manner as
to show at any time the amount of the stock of the corporation of
each class issued and outstanding, the manner in which and the
time when such stock was paid for, the names alphabetically
arranged and the addresses of the holders of record thereof, the
amount of stock held by each holder and time when each became
such holder of record; and he shall exhibit at all reasonable
times to any director, on application, the original or duplicate
stock ledger. He shall cause the stock ledger referred to in
section 6.04 hereof to be kept and exhibited at the principal
office of the corporation, or at such other place as the board of
directors shall determine, in the manner and for the purpose
provided in such section;
(f) He shall be empowered to sign certificates representing
stock of the corporation, the issuance of which shall have been
authorized by the board of directors; and
(g) He shall perform in general all duties incident to the
office of secretary and such other duties as are given to him by
these bylaws or as from time to time may be assigned to him by
the board of directors or the president.
Section 4.11. The Treasurer. The treasurer shall have the
following powers and duties:
(a) He shall have charge and supervision over and be
responsible for the monies, securities, receipts, and
disbursements of the corporation;
(b) He shall cause the monies and other valuable effects of
the corporation to be deposited in the name and to the credit of
the corporation in such banks or trust companies or with such
banks or other depositories as shall be selected in accordance
with section 5.03 hereof;
(c) He shall cause the monies of the corporation to be
disbursed by checks or drafts (signed as provided in section 5.04
hereof) drawn on the authorized depositories of the corporation,
and cause to be taken and preserved property vouchers for all
monies disbursed;
(d) He shall render to the board of directors or the
president, whenever requested, a statement of the financial
condition of the corporation and of all of his transactions as
treasurer, and render a full financial report at the annual
meeting of the stockholders, if called on to do so;
(e) He shall cause to be kept correct books of account of
all the business and transactions of the corporation and exhibit
such books to any directors on request during business hours;
(f) He shall be empowered from time to time to require from
all officers or agents of the corporation reports or statements
giving such information as he may desire with respect to any and
all financial transactions of the corporation; and
(g) He shall perform in general all duties incident to the
office of treasurer and such other duties as are given to him by
these bylaws or as from time to time may be assigned to him by
the board of directors or the president.
Section 4.12. General Manager. The board of directors may
employ and appoint a general manager who may appoint a general
manager may, or may not, be one of the officers or directors of
the corporation. The general manager, if any, shall have the
following powers and duties:
(a) He shall be the chief executive officer of the
corporation and, subject to the directions of the board of
directors, shall have general charge of the business affairs and
property of the corporation and general supervision over its
officers, employees, and agents;
(b) He shall have the exclusive management of the business
of the corporation and of all of its dealings, but at all times
subject to the control of the board of directors;
(c) Subject to the approval of the board of directors or
the executive committee, if any, he shall employ all employees of
the corporation, or delegate such employment to subordinate
officers, or such division chiefs, and shall have authority to
discharge any person so employed; and
(d) He shall make a report to the president and directors
quarterly, or more often if required to do so, setting forth the
result of the operations under his charge, together with
suggestions looking to the improvement and betterment of the
condition of the corporation, and shall perform such other duties
as the board of directors shall require.
Section 4.13. Salaries. The salaries or other compensation
of the officers of the corporation shall be fixed from time to
time by the board of directors, except that the board of
directors may delegate to any person or group of persons the
power to fix the salaries or other compensation of any
subordinate officers or agents appointed in accordance with the
provisions of section 4.03 hereof. No officer shall be prevented
from receiving any such salary or compensation by reason of the
fact that he is also a director of the corporation.
Section 4.14. Surety Bonds. In case the board of directors
shall so require, any officer or agent of the corporation shall
execute to the corporation a bond in such sums and with such
surety or sureties as the board of directors may direct,
conditioned on the faithful performance of his duties to the
corporation, including responsibility for negligence and for the
accounting of all property, monies, or securities of the
corporation which may come into his hands.
ARTICLE V
EXECUTION OF INSTRUMENTS, BORROWING OF MONEY,
AND DEPOSIT OF CORPORATE FUNDS
Section 5.01. Execution of Instruments. Subject to any
limitation contained in the articles of incorporation or these
bylaws, the president or any vice president or the general
manager, if any, may, in the name and on behalf of the
corporation, execute and deliver any contract or other instrument
authorized in writing by the board of directors. The board of
directors may, subject to any limitation contained in the
articles of incorporation or in these bylaws, authorize in
writing any officer or agent to execute and deliver any contract
or other instrument in the name and on behalf of the corporation;
any such authorization may be general or confined to specific
instances.
Section 5.02. Loans. No loan or advance shall be
contracted on behalf of the corporation, no negotiable paper or
other evidence of its obligation under any loan or advance shall
be issued in its name, and no property of the corporation shall
be mortgaged, pledged, hypothecated, transferred, or conveyed as
security for the payment of any loan, advance, indebtedness, or
liability of the corporation, unless and except as authorized by
the board of directors. Any such authorization may be general or
confined to specific instances.
Section 5.03. Deposits. All monies of the corporation not
otherwise employed shall be deposited from time to time to its
credit in such banks or trust companies or with such bankers or
other depositories as the board of directors may select, or as
from time to time may be selected by any officer or agent
authorized to do so by the board of directors.
Section 5.04. Checks, Drafts, Etc. All notes, drafts,
acceptances, checks, endorsements, and, subject to the provisions
of these bylaws, evidences of indebtedness of the corporation
shall be signed by such officer or officers or such agent or
agents of the corporation and in such manner as the board of
directors from time to time may determine. Endorsements for
deposit to the credit of the corporation in any of its duly
authorized depositories shall be in such manner as the board of
directors from time to time may determine.
Section 5.05. Banks and Debentures. Every bond or
debenture issued by the corporation shall be evidenced by an
appropriate instrument which shall be signed by the president or
a vice president and by the secretary and sealed with the seal of
the corporation. The seal may be a facsimile, engraved or
printed. Where such bond or debenture is authenticated with the
manual signature of an authorized officer of the corporation or
other trustee designated by the indenture of trust or other
agreement under which such security is issued, the signature of
any of the corporation's officers named thereon may be a
facsimile. In case any officer who signed, or whose facsimile
signature has been used on any such bond or debenture, shall
cease to be an officer of the corporation for any reason before
the same has been delivered by the corporation, such bond or
debenture may nevertheless be adopted by the corporation and
issued and delivered as though the person who signed it or whose
facsimile signature has been used thereon had not ceased to be
such officer.
Section 5.06. Sale, Transfer, Etc. of Securities. Sales,
transfers, endorsements, and assignments of stocks, bonds, and
other securities owned by or standing in the name of the
corporation, and the execution and delivery on behalf of the
corporation of any and all instruments in writing incident to any
such sale, transfer, endorsement, or assignment, shall be
effected by the president, or by any vice president together with
the secretary, or by any officer or agent thereunto authorized by
the board of directors.
Section 5.07. Proxies. Proxies to vote with respect to
stock of other corporations owned by or standing in the name of
the corporation shall be executed and delivered on behalf of the
corporation by the president or any vice president and the
secretary or assistant secretary of the corporation, or by any
officer or agent thereunder authorized by the board of directors.
ARTICLE VI
CAPITAL SHARES
Section 6.01. Stock Certificates. Every holder of stock in
the corporation shall be entitled to have a certificate, signed
by the president or any vice president and the secretary or
assistant secretary, and sealed with the seal (which may be a
facsimile, engraved or printed) of the corporation, certifying
the number and kind, class or series of stock owned by him in the
corporation; provided, however, that where such a certificate is
countersigned by (a) a transfer agent or an assistant transfer
agent, or (b) registered by a registrar, the signature of any
such president, vice president, secretary, or assistant secretary
may be a facsimile. In case any officer who shall have signed,
or whose facsimile signature or signatures shall have been used
on any such certificate, shall cease to be such officer of the
corporation, for any reason, before the delivery of such
certificate by the corporation, such certificate may nevertheless
be adopted by the corporation and be issued and delivered as
though the person who signed it, or whose facsimile signature or
signatures shall have been used thereon, has not ceased to be
such officer. Certificates representing stock of the corporation
shall be in such form as provided by the statutes of the state of
incorporation. There shall be entered on the stock books of the
corporation at the time of issuance of each share, the number of
the certificate issued, the name and address of the person owning
the stock represented thereby, the number and kind, class or
series of such stock, and the date of issuance thereof. Every
certificate exchanged or returned to the corporation shall be
marked "canceled" with the date of cancellation.
Section 6.02. Transfer of Stock. Transfers of stock of the
corporation shall be made on the books of the corporation by the
holder of record thereof, or by his attorney thereunto duly
authorized by a power of attorney duly executed in writing and
filed with the secretary of the corporation or any of its
transfer agents, and on surrender of the certificate or
certificates, properly endorsed or accompanied by proper
instruments of transfer, representing such stock. Except as
provided by law, the corporation and transfer agents and
registrars, if any, shall be entitled to treat the holder of
record of any stock as the absolute owner thereof for all
purposes, and accordingly shall not be bound to recognize any
legal, equitable, or other claim to or interest in such stock on
the part of any other person whether or not it or they shall have
express or other notice thereof.
Section 6.03. Regulations. Subject to the provisions of
articles IV and V of the articles of incorporation the board of
directors may make such rules and regulations as they may deem
expedient concerning the issuance, transfer, redemption, and
registration of certificates for stock of the corporation.
Section 6.04. Maintenance of Stock Ledger at Principal
Place of Business. A stock ledger (or ledgers where more than
one kind, class, or series of stock is outstanding) shall be kept
at the principal place of business of the corporation, or at such
other place as the board of directors shall determine, containing
the names alphabetically arranged of original stockholders of the
corporation, their addresses, their interest, the amount paid on
their shares, and all transfers thereof and the number and class
of stock held by each. Such stock ledgers shall at all
reasonable hours be subject to inspection by persons entitled by
law to inspect the same.
Section 6.05. Transfer Agents and Registrars. The board of
directors may appoint one or more transfer agents and one or more
registrars with respect to the certificates representing stock of
the corporation, and may require all such certificates to bear
the signature of either or both. The board of directors may from
time to time define the duties of such transfer agents and
registrars. No certificate for stock shall be valid until
countersigned by a transfer agent, if at the date appearing
thereon the corporation had a transfer agent for such stock, and
until registered by a registrar, if at such date the corporation
had a registrar for such stock.
Section 6.06. Closing of Transfer Books and Fixing of
Record Date.
(a) The board of directors shall have power to close the
stock ledgers of the corporation for a period of not to exceed 60
days preceding the date of any meeting of stockholders, or the
date for payment of any dividend, or the date for the allotment
of rights or capital stock shall go into effect, or a date in
connection with obtaining the consent of stockholders for any
purpose.
(b) In lieu of closing the stock ledgers as aforesaid, the
board of directors may fix in advance a date, not exceeding 60
days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in
connection with obtaining any such consent, as a record date for
the determination of the stockholders entitled to a notice of,
and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, or to give
such consent.
(c) If the stock ledgers shall be closed or a record date
set for the purpose of determining stockholders entitled to
notice of or to vote at a meeting of stockholders, such books
shall be closed for or such record date shall be at least ten
days immediately preceding such meeting.
Section 6.07. Lost or Destroyed Certificates. The
corporation may issue a new certificate for stock of the
corporation in place of any certificate theretofore issued by it,
alleged to have been lost or destroyed, and the board of
directors may, in their discretion, require the owner of the lost
or destroyed certificate or his legal representatives, to give
the corporation a bond in such form and amount as the board of
directors may direct, and with such surety or sureties as may be
satisfactory to the board, to indemnity the corporation and its
transfer agents and registrars, if any, against any claims that
may be made against it or any such transfer agent or registrar on
account of the issuance of such new certificate. A new
certificate may be issued without requiring any bond when, in the
judgment of the board of directors it is proper to do so.
ARTICLE VII
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 7.01. How Constituted. The board of directors may
designate an executive committee and such other committees as the
board of directors may deem appropriate, each of which committees
shall consist of one or more directors. Members of the executive
committee and of any such other committee shall be designated
annually at the annual meeting of the board of directors;
provided, however, that at any time the board of directors may
abolish or reconstitute the executive committee or any such other
committee. Each member of the executive committee and of any
such other committee shall hold office until his successor shall
have been designated or until his resignation or removal in the
manner provided in these bylaws.
Section 7.02. Powers. During the intervals between
meetings of the board of directors, the executive committee shall
have and may exercise all powers of the board of directors in the
management of the business and affairs of the corporation, except
for the power to fill vacancies in the board of directors or to
amend these bylaws, and except for such powers as by law may not
be delegated by the board of directors to an executive committee.
Section 7.03. Proceedings. The executive committee, and
such other committees as may be designated hereunder by the board
of directors, may fix its own presiding and recording officer or
officers, and may meet at such place or places, at such time or
times and on such notice (or without notice) as it shall
determine from time to time. It will keep a record of its
proceedings and shall report such proceedings to the board of
directors at the meeting of the board of directors next
following.
Section 7.04. Quorum and Manner of Acting. At all meetings
of the executive committee, and of such other committees as may
be designated hereunder by the board of directors, the presence
of members constituting a majority of the total authorized
membership of the committee shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act
of a majority of the members present at any meeting at which a
quorum is present shall be the act of such committee. The
members of the executive committee, and of such other committees
as may be designated hereunder by the board of directors, shall
act only as a committee and the individual members thereof shall
have no powers as such.
Section 7.05. Resignations. Any member of the executive
committee, and of such other committees as may be designated
hereunder by the board of directors, may resign at any time by
delivering a written resignation to either the president, the
secretary, or assistant secretary, or to the presiding officer of
the committee of which he is a member, if any shall have been
appointed and shall be in office. Unless otherwise specified
therein, such resignation shall take effect on delivery.
Section 7.06. Removal. The board of directors may at any
time remove any member of the executive committee or of any other
committee designated by it hereunder either for or without cause.
Section 7.07. Vacancies. If any vacancy shall occur in the
executive committee or of any other committee designated by the
board of directors hereunder, by reason of disqualification,
death, resignation, or removal, or otherwise, the remaining
members shall, until the filling of such vacancy, constitute the
then total authorized membership of the committee and continue to
act, unless such committee consisted of more than one member
prior to the vacancy or vacancies and is left with only one
member as a result thereof. Such vacancy may be filled at any
meeting of the board of directors.
Section 7.08. Compensation. The board of directors may
allow a fixed sum and expenses of attendance to any member of the
executive committee, or of any other committee designated by it
hereunder, who is not an active salaried employee of the
corporation for attendance at each meeting of the said committee.
Section 7.09. Finance Committee and Compensation Committee.
The board of directors shall appoint a Finance Committee and a
Compensation Committee. Each such committee shall include one of
the directors designated by FCB pursuant to Section 3.01 of these
Bylaws. All recommendations of each such committee to the board
of directors must be unanimous, including the affirmative vote of
the FCB representative on each such committee. In addition, each
of the corporate actions set forth on Exhibit I to these Bylaws
must be recommended by either the Finance Committee or the
Compensation Committee, as applicable, prior to its being
approved by the board of directors or otherwise taken.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. Indemnification: Third Party Actions. The
corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceedings,
whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation), by reason
of the fact that he is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with any such action,
suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or 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 he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any
criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
Section 8.02. Indemnification: Corporate Actions. The
corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee, or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit, if he acted in
good faith and in a manner he 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 his
duty to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine on
application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court
deems proper.
Section 8.03. Determination. To the extent that a
director, officer, employee, or agent of the corporation has been
successful on the merits or otherwise in defense of any action,
suit, or proceeding referred to in sections 8.01 and 8.02 hereof,
or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith. Any
other indemnification under sections 8.01 or 8.02 hereof shall be
made by the corporation on a determination that indemnification
of the director, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard or
conduct set forth in sections 8.01 or 8.02 hereof. Such
determination shall be made either (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) by
independent legal counsel in a written opinion, or (iii) by the
stockholders by a majority vote of a quorum of stockholders at
any meeting duly called for such purpose.
Section 8.04. General Indemnification. The indemnification
provided by this section shall not be deemed exclusive of any
other indemnification granted under any provision of any statute,
in the corporation's articles of incorporation, bylaws,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee, or agent, and shall inure to the benefit of the heirs
and legal representatives of such a person.
Section 8.05. Advances. Expenses incurred in defending a
civil or criminal action, suit, or proceeding as contemplated in
this section may be paid by the corporation in advance of the
final disposition of such action, suit, or proceeding on a
majority vote of a quorum of the board of directors and on
receipt of an undertaking by or on behalf of the director,
officer, employee, or agent to repay such amount or amounts
unless it ultimately be determined that he is to be indemnified
by the corporation as authorized by this section.
Section 8.06. Scope of Indemnification. The
indemnification authorized by this section shall apply to all
present and future directors, officers, employees, and agents of
the corporation and shall continue as to such persons who cease
to be directors, officers, employees, or agents of the
corporation, and shall inure to the benefit of the heirs,
executors, and administrators of all such persons and shall be in
additional to all other indemnification permitted by law.
Section 8.07. Insurance. 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
or was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise 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 any such liability
under the laws of the state of incorporation, as the same may
hereafter be amended or modified.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
ARTICLE X
DIVIDENDS
The board of directors may from time to time declare, and
the corporation may pay, dividends on its outstanding stock in
the manner and on the terms and conditions provided by the
certificate of incorporation and by law.
ARTICLE XI
AMENDMENTS
All bylaws of the corporation, whether adopted by the board
of directors or the stockholders, shall be subject to amendment,
alteration, or repeal, and new bylaws may be made, except that no
bylaw adopted or amended by the stockholders shall be altered or
repealed by the board of directors.
EXHIBIT I
(Adopted by Resolution of the Board on August 11, 1993)
(A) Corporate actions which must be recommended by the Finance
Committee:
(1) the direct or indirect declaration or payment of any
dividends or the making of any distributions upon any equity
securities except with respect to the Convertible Preferred Stock
and except for dividends by AFGL or Whitney payable to Holdings
to be used by Holdings for (i) normal operating expenses of
Holdings, or (ii) redemption of, or dividends to be paid on, the
Convertible Preferred Stock;
(2) the direct or indirect redemption, purchase or other
acquisition of equity securities other than the Convertible
Preferred Stock, except as otherwise contemplated or permitted by
the Merger Agreement;
(3) the issuance (contingent or otherwise) of any notes or
debt securities containing equity features (including, without
limitation, any notes or debt securities convertible into or
exchangeable for equity securities, issued in connection with the
issuance of equity securities or containing profit participation
features) or any equity securities (or any securities convertible
into or exchangeable for any equity securities) except (i) the
Convertible Preferred Stock; (ii) as contemplated by the Merger
Agreement and (iii) the Tallwood Warrants and the securities
issuable upon exercise thereof;
(4) any transaction with any stockholders, officers,
directors, or their affiliates (other than as permitted pursuant
to the Merger Agreement in connection with the issuance of any
securities of the Companies, or which transaction, or series of
related transactions, involves cash or property valued at $1,000
or less in the aggregate);
(5) the incurrence of any debt, obligation or liability
(absolute, accrued, contingent or otherwise) except the Note,
media or production obligations incurred in the ordinary course
of business and renewals or extensions of obligations to
Amerifund or Merrill Lynch existing on the date hereof on
substantially similar terms and conditions;
(6) make, or make any commitment for, capital expenditures
in excess of $5,000 for any single expenditure or $30,000 in the
aggregate during any period of 12 consecutive months;
(7) the purchase of a business or all or any part of the
stock or assets of a business or the establishment of a joint
venture, partnership or affiliation with any other entity;
(8) the entering into of any lease of real property for any
purpose or any lease of personal property with annual lease
payments in excess of $10,000;
(9) the establishment of any employee benefit plan or
general welfare plan that covers any one or more of the
employees, directors or officers of any of the Companies, whether
active or retired, and whether or not such plan is subject to the
Employee Retirement Income Security Act of 1974, as amended; and
(10) the purchase of outside professional services in
excess of the following amounts: Freelancers -- $100,000 per year
in the aggregate; Accounting -- all amounts incurred through the
Effective Date, plus S75,000 per year; Legal -- all amounts
incurred through the Effective Date, plus $50,000 per year;
Search/employment agencies -- $25,000 per year.
(B) Corporate actions which must be recommended by the
Compensation Committee:
(1) hiring any officer, employee, agent or representative
who is subject to an employment agreement in excess of six (6)
months in duration or who is provided with benefits or severance
rights beyond ordinary policy; and
(2) increases in the annual compensation (including, but
not limited to, salary, bonuses and special remuneration) payable
to or to become payable to any officer or employee whose annual
compensation (including, but not limited to, salary, bonuses and
special remuneration) exceeds $150,000, except where such
increase is due solely to the operation of a bonus formula
existing at the date hereof or subsequently approved by the
Compensation Committee, in accordance with written agreements
previously delivered to FCB or approved by the Compensation
Committee.
The corporate actions contemplated by clauses (A)(3) and (A)(5)
above shall not require approval of the Finance Committee if the
proposed corporate action would result in all of the Convertible
Preferred Stock being redeemed and the entire principal balance,
plus accrued and unpaid interest, of the Note being paid in full.
EXHIBIT II
(Adopted by Resolution of the Board on October 25, 1991)
Neither the corporation nor its stockholders shall be
governed by Sections 78.411 to 78.444, inclusive, of the Nevada
Revised Statutes, or any successor provisions thereto.