-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OLk7lXcCzuMRA04MGvS57dpOOvf95sjMsVv1Ov09+xQguEZzIMFwlTzjSatBKqRj An21Rlmwf/1TR5oBtw14KQ== 0001144204-03-008587.txt : 20031219 0001144204-03-008587.hdr.sgml : 20031219 20031219133621 ACCESSION NUMBER: 0001144204-03-008587 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20030731 FILED AS OF DATE: 20031219 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL LAMPOON INC CENTRAL INDEX KEY: 0000798078 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MOTION PICTURE & VIDEO TAPE PRODUCTION [7812] IRS NUMBER: 954053296 STATE OF INCORPORATION: CA FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-15284 FILM NUMBER: 031064521 BUSINESS ADDRESS: STREET 1: 10850 WILSHIRE BLVD STE 1000 CITY: LOS ANGELES STATE: CA ZIP: 90024 BUSINESS PHONE: 3104745252 MAIL ADDRESS: STREET 1: 10850 WILSHIRE BLVD STREET 2: SUITE 1000 CITY: LOS ANGELES STATE: CA ZIP: 90024 FORMER COMPANY: FORMER CONFORMED NAME: J2 COMMUNICATIONS /CA/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: J2 TELECOMMUNICATIONS DATE OF NAME CHANGE: 19890731 FORMER COMPANY: FORMER CONFORMED NAME: J2 COMMUNICATIONS DATE OF NAME CHANGE: 19880308 10-K/A 1 natlamp_10ka.txt U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A AMENDMENT NO. 1 (Mark one) [x] Annual Report Pursuant to Section 13 or 15(d) ofthe Securities Exchange Act of 1934 For the Fiscal Year Ended July 31, 2003 OR [ ] Transition Report Pursaunt to Section 13 or 15(d) of the Securites Exchange Act of 1934 For the transition period from ______________ to _____________ Commission File No. 0-15284 NATIONAL LAMPOON, INC. (Exact name of registrant as specified in its charter) Delaware 95-4053296 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification No.) 10850 Wilshire Blvd., Suite 1000 Los Angeles, California 90024 (Address of principal executive office) Registrants telephone number: (310) 474-5252 Securities registered under Section 12(b) of the Exchange Act: None Securities registered under Section 12(g) of the Exchange Act: Common Stock, $0.001 par value Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES X NO Indicate by check mark if disclosure of delinquent filers in response to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] Indicate by check mark whether the registrant is an accelerated filer (as defefined in Exchange Act Rule 12b-2). Yes [ ] No [X] As of January 31, 2003, the aggregate market value of the voting and non-voting common stock held by non-affiliates of the Registrant (based on the closing sales price as reported by the OTC Bulletin Board) was $2,271,465 assuming all officers and directors are deemed affiliates for this purpose). As of November 6, 2003 the Registrant had 1,533,418 shares of its common stock, par value $.0001, outstanding. Documents Incorporated by Reference: None 1 TABLE OF CONTENTS PART III. ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT ITEM 11. EXECUTIVE COMPENSATION ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT PART IV. ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K. SIGNATURES 2 INTRODUCTORY NOTE: This Form 10-K/A is being filed solely for the purpose of correcting certain inadvertent omissions in the Form 10-K filed on November 13, 2003 in Part III, Items 10, 11 and 12, including the fact that the Equity Compensation Plan information was included in Item 5 instead of Item 12. This Form 10-K/A does not reflect events occurring after the filing of the original Form 10-K, or modify or update the disclosures therein in any way other than as required to reflect the amendment set forth below. ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The following table sets forth information with respect to our directors and executive officers. Directors are elected at the annual meeting of stockholders to serve a one-year term and until their successors are elected and qualified. Officers serve at the request of the Board of Directors. There are no family relationships among any of the directors or executive officers.
Director Name Age Position Since ==================================== === =============================================== ======== James P. Jimirro 66 Director, Chairman, President and 1986 Chief Executive Officer James Fellows 66 Director 1986 Bruce P. Vann 47 Director 1986 Daniel S. Laikin 41 Director and Chief Operating Officer 2000 Timothy S. Durham 41 Director 2002 Paul Skjodt 45 Director 2002 Joshua A. Finkenberg 30 Director 2002 Douglas Bennett 44 Executive Vice President Jim Toll 50 Chief Finanical Officer
EXECUTIVE OFFICERS AND DIRECTORS In connection with the consummation of the Reorganization Transactions, Messrs. Durham, Skjodt and Finkenberg were elected to the Board on May 17, 2002. Messrs. Durham and Skjodt filled the vacancies created by the resignations on that date of Messrs. De Simio and Cowan and Mr. Finkenberg was elected to fill the vacancy created by the expansion of the Board from six to seven members. JAMES P. JIMIRRO has been employed as our President and Chief Executive Officer since its inception. From 1980 to 1985, he was the President of Walt Disney Telecommunications Company, which included serving as President of Walt Disney Home Video, a producer and distributor of family home video programming. While in this position, he also served as Corporate Executive Vice President of Walt Disney Productions. In addition, from 1983 to 1985, Mr. Jimirro served as the first President of the Disney Channel, a national cable pay-television channel, which Mr. Jimirro conceived and implemented. Mr. Jimirro continued in a consulting capacity for the Walt Disney Company through July 1986. From 1973 to 1980, he served as Director of International Sales and then as Executive Vice President of the Walt Disney Educational Media Company, a subsidiary of the Walt Disney Company. Prior to 1973, Mr. Jimirro directed international sales for CBS, Inc., and later for Viacom International. Mr. Jimirro also served as a member of the Board of Directors of Rentrak Corporation between January 1990 and September 2000. JAMES FELLOWS has been a member of the Board of Directors and the President of the Central Education Network, Inc., a Chicago, Illinois association of public television and educational associations, since 1983. From 1962 through 1982, Mr. Fellows worked in a variety of positions for the National Association of Educational Broadcasters in Washington, D.C., and became its President and Chief Executive Officer in 1978. Mr. Fellows is a director of numerous nonprofit corporations, including the Hartford Gunn Institute, a research and planning service for public telecommunications; the Maryland Public Broadcasting Foundation, a corporate fund-raiser for public television; and the American Center for Children and Media, a coalition of organizations committed to improving media services for children and youth. BRUCE P. VANN has been a principal of the law firm of Kelly Lytton Vann LLP since December 1995. Mr. Vann specializes in corporate and securities matters. From January 1994 through December 1998, Mr. Vann served, on a non-exclusive basis, as Senior Vice President, Business and Legal Affairs, of Largo Entertainment, Inc., a subsidiary of the Victor Company of Japan. DANIEL S. LAIKIN has been employed as our Chief Operating Officer since May 17, 2002. Mr. Laikin served as Co-Chairman of Biltmore Homes, Inc., an Indiana-based home building and real estate development company until 2000. He also served as a managing partner of Four Leaf Partners, LLC, a closely held investment company, concentrating on the startup and financing of high tech and Internet-related companies. He is also on the Board of Directors of Obsidian Enterprises, Inc. TIMOTHY S. DURHAM has served as the Chief Executive and Chairman of the Board of Directors of Obsidian Enterprises, Inc. (formerly Danzer Corporation) since June 2001. Since April 2000, he has served as a Managing Member and Chief Executive Officer of Obsidian Capital Company LLC, which is the general partner of Obsidian Capital Partners LP. Since 1998, Mr. Durham has founded and maintained a controlling interest in several investment funds, including Durham Capital Corporation, Durham Hitchcock Whitesell and Company LLC, and Durham Whitesell Associates LLC. From 1991 to 1998, Mr. Durham served in various capacities at Carpenter Industries, Inc., including as Vice Chairman, President and Chief Executive Officer. Mr. Durham serves as a director of Obsidian Enterprises, Inc. 3 PAUL SKJODT is the Chairman and Chief Executive Officer of Biltmore Homes, Inc., an Indiana-based home building and real estate development company. JOSHUA A. FINKENBERG is the Director of Acquisitions for California Investment Fund, LLC, a specialized investment company that acquires and invests in undervalued assets and companies. Previously, Mr. Finkenberg was the Chairman and President of AF Investments LLC, a holding company focused on acquisitions of and investments in businesses located in the Southern California area. From August 2000 through January 2002, Mr. Finkenberg was a Senior Associate with Batchelder & Partners, a financial advisory firm based in San Diego, California. From July 1996 through July 2000, Mr. Finkenberg was an Associate in the Investment Banking Department of SunTrust Equitable Securities Corporation, a full-service investment bank located in Nashville, Tennessee. Mr. Finkenberg graduated with highest honors from the Robert C. Goizueta Business School at Emory University with a dual concentration in Finance and Management Information Systems/Information Technology. DOUGLAS BENNETT has over 22 years of experience in managing businesses in the publishing, software and Internet space. Prior to his joining the Company he was the President of iUniverse, Inc., the largest independent publisher in the United States. iUniverse produced over 5,000 titles a year through the Internet. Prior to that he was the Chairman & CEO of EoExchange, Inc., an Internet search engine business. From 1992 until 1999 Mr. Bennett worked for Macmillan Publishing, the largest computer book and reference publisher in the world. Mr. Bennett started in the software and Internet division of Macmillian's business and eventually became the President of the entire Macmillan Publishing business. Prior to his employment with Macmillian, Mr. Bennett worked for 11 years for CCH Computax, the largest tax software company in the United States. At CCH Computax, Mr. Bennett held numerous senior level positions. JAMES TOLL has been employed as our Chief Financial Officer since August 2001. Mr. Toll has worked in the financial area for 22 years, including CBS Television Network in Los Angeles and Warner/Electra/Atlantic International (WEA International) Records in Burbank as a Senior Financial Analyst. Mr. Toll spent three years as head of the accounting department for the non-profit company WQED-West, and was involved with the production of the Emmy award winning seven part series, "The Planet Earth", and the production of National Geographic Specials during his tenure. From 1996 to 1999, Mr. Toll was employed as the Chief Financial Officer of Keller Entertainment Group, an international television production and distribution company. Mr. Toll also worked for the Company from approximately May 1987 through March 1993 as its Chief Financial Officer. Mr. Toll received his Bachelor of Arts degree from the University of California, Berkeley with Distinction and Honors in his major and a Master of Business Administration (Finance and Accounting) from the University of Southern California in l979 where he graduated in the top 15% of his class. CONSULTANTS We are party to a consulting agreement, approved by our Board of Directors on August 7, 2002, with Zelnick Media Group (ZM), headed by Stauss Zelnick, the former head of 20th Century Fox and Bertlesman, the European media conglomerates. Mr. Zelnick and his affiliates are providing marketing, development, production and branding assistance to us. In particular, Scott Ziegler, a partner of ZM, is assisting directly in certain television activities. ZM is being compensated solely by the issuance to it of 300,000 warrants (the ZM Warrants) which have been issued directly to ZM and an affiliate. Two of the ZM Warrants will entitle ZM and an affiliate to purchase up to 150,500 of the shares of our Common Stock at an exercise price of $6.50 per share the other two ZM Warrants will entitle ZM and an affiliate to purchase up to 150,500 of the ZM Warrant Shares at an exercise price of $10.00 per share. The number and exercise price of the ZM Warrants are subject to adjustments customarily contained in warrants of a similar nature. One-third of the ZM Warrant Shares become exercisable upon issuance of the ZM Warrants and the remainder of the ZM Warrants will first become exercisable in monthly installments during the 13th through 36th months following the issuance of the ZM Warrants, provided that no ZM Warrant Shares become exercisable after the termination of the consulting agreement. We are party to a year to year consulting agreement with Mr. Daniel Sarnoff, originally dated as of September 1, 2002 pursuant to which Mr. Sarnoff serves in a non-exclusive capacity as the CEO of our newly formed subsidiary NL Games, Inc. ("NLG"), as well as assisting us in sales of the National Lampoon Networks. Pursuant to the terms of his agreement with us, Mr. Sarnoff is to receive an annual compensation of $60,000 per year, and a percentage of revenue from NLG games. Mr. Sarnoff is also to receive stock options and other bonuses, subject to approval of the Board of Directors. Pursuant to the terms of an oral year-to-year (August 2003 to August 2004) agreement, Errol Gerson has been retained as a consultant responsible for implementing our operations regarding the Burly Bear acquisition. Mr. Gerson is being paid $12,500 per month. ADVISORY BOARD. We have established a creative advisory board and a corporate advisory board. The members of these boards have agreed to assist us in identifying business opportunities, as well as opportunities to leverage our brand and increase our exposure in the creative community. The composition of these two boards is as follows: CORPORATE ADVISORY BOARD: DOUGLAS BENNETT- Mr. Bennett, who is currently serving as an Executive Vice President, has more than 20 years of experience in management, sales and marketing in the publishing industry. Mr. Bennett was formerly president of Macmillan Digital and Macmillan USA. STEVE LEHMAN- Mr. Lehman was one of the founders of Premier Radio. He is currently a partner in Broadstream Capital Partners, MARK ROESSLER- Mr. Roessler is currently head of CMG Worldwide, an agency representing over 200 diverse personalities and entities, as well as the estates of celebrities, in various enterprises. CHARLES SEGARS- Mr. Segars was formerly an executive at DreamWorks Television, and is currently an E.W. Scripps cable and television executive. BRIAN WOOD- Mr. Wood is president of Columbia House, the leading book, record and DVD club. 4 Each of the members of the Corporate Advisory Board is entitled to receive options to acquire 5,000 shares of our common stock at an exercise price determined on the date of grant CREATIVE ADVISORY BOARD: CHARLES FINK- Mr. Fink, formerly a senior executive of AOL Time Warner, is currently the president of American Greetings.com. ERROL GERSON- Mr. Gerson is currently a consultant to the Company, and has a twenty year background in the entertainment. industry. Mr. Gerson, in addition to acting as design consultant to various internet ventures, formerly was the Director of New Media for the Creative Artists Agency. For the past two and half years, Mr. Gerson was the CEO of iNetnow. DEBBIE GOLDFARB- Ms. Goldfarb is a television agent at Abrams, Rubeloff in Los Angeles, and was formerly an agent of the Creative Artist Agency. RICHARD LEWIS- The founder of Ovation Entertainment, Mr. Lewis was one of the founders of Trilogy Entertainment, the producers of such hits as Robin Hood: Prince of Thieves and Backdraft. SCOTT MCCAIN- Mr. McCain is chairman of McCain Performance Group, an association of companies specializing in trade shows and professional business speaking. CHRIS MILLER- Mr. Miller was formerly a writer for National Lampoon and one of the original writers of National Lampoon's Animal House. DAN PASTERNACK- Mr. Pasternack was formerly an executive for Granada Entertainment, USA, and was a senior vice president of drama at studios USA, an affiliate of Universal Pictures. BRAD YONOVER- Formerly a principal of Greenstreet Productions, he is currently a consultant focusing of development and production of feature films. Each of the members of the Creative Advisory Board is entitled to receive options to acquire 2,000 shares of our common stock at an exercise price determined on the date of grant. AUDIT COMMITTEE FINANCIAL EXPERT The Company's Board of Directors has determined that no member of the Audit Committee qualifies as an "audit committee financial expert" (as defined in the SEC rules). As disclosed in previous filings with the SEC, the composition of the Company's Board of Directors is determined pursuant to the provisions of a Voting Agreement. None of the individuals nominated for and elected to the Board in accordance with the Voting Agreement qualifies as an "audit committee financial expert." SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Section 16(a) of the Securities Exchange Act of 1934 requires the Company's executive officers, directors and persons who own more than 10% of the Company's common stock to file reports of ownership and changes in ownership with the Securities and Exchange Commission. These persons are required to provide the Company with copies of all Section 16(a) forms that they file. Based solely on the Company's review of these forms and written representations from certain of the executive officers and directors, National Lampoon believes that all Section 16(a) filing requirements were met during fiscal year 2003, except as follows: (i) Form 4s to report stock option grants on June 30, 2003 were late in being filed for James P. Jimirro, James Toll, Timothy Durham, Paul Skjodt and Josh Finkenberg. James Fellows and Douglas Bennett also received option grants of June 30, 2003, which grants have not yet been reported on Form 4s. (ii) Douglas Bennett also received stock option grants on August 7, 2002 and October 14, 2002, which grants have not yet been reported on Form 4s. Mr. Bennett has not yet filed a Form 3. CODE OF ETHICS We are in the process of preparing a new Code of Ethics which will be filed as an exhibit to a future filing. 5 ITEM 11. EXECUTIVE COMPENSATION SUMMARY COMPENSATION TABLE The following table sets forth the compensation for each of the last three fiscal years of our Chief Executive Officer and up to four of our executive officers ("Named Officers") whose annual salary and bonus exceeded $100,000 during the fiscal year ended July 31, 2003.
Annual Compensation Long Term Compensation ==================================== ========================== Other Annual Stock All Other Compensation SARs Options Compensation Name and Position Year Salary($) ($) (Shares) (Shares) ($) =================================================================================================================================== James P. Jimirro 2003 500,000() 0 0 35,000(2) 0 Chairman, President and 2002 1,471,146(1) 0 0 608,335(2) 0 Chief Executive Officer 2001 190,750(3) 0 25,000 25,000 0 Daniel Laikin 2003 200,000(4) Chief Operating Officer Douglas Bennett 2003 131,667 190,000 21,300 Executive Vice President James Toll 2003 132,737 15,000 Chief Financial Officer 2002 36,364 15,000
(1) Includes 1,215,069 received as apart of the Reorganization Transactions. (2) Iincludes options to acquire 450,000 shares of common stock granted during the fiscal year ended December 31, 2002, plus 158,335 stock options that were converted from SARs as part of the Reorganization Transactions. (3) Mr. Jimirro had voluntarily deferred all Base Salary, as defined by the applicable employment agreement, in excess of $190,750. Such deferred amounts are payable only upon a Change of Control of the Company as defined by the applicable employment agreement and are included in All Other Compensation hereunder. Under the terms of Mr. Jimirro's Restated Employment Agreement the amounts due to him have been forgiven. (4) Represents one year of salary to Mr. Laikin that was paid in the form of Series B Preferred. 6 STOCK OPTIONS AND STOCK APPRECIATION RIGHTS GRANTS The following table sets forth the individual grants of stock options and stock appreciation rights made during the fiscal year ended July 31, 2003 to the Named Officers:
Potential Realized Value at Assumed Annual % of Total Rates of Stock Price Options/SARs Appreciation Options/ Granted to Exercise for Option Term SARs Employees in Or Base Expiration ================================= Name Granted Fiscal Year Price($/Sh) Date 5%($) 10%($) ============================================================================================================================= James P. Jimirro 35,000(1) 9% $ 4.64 05/13/10 285,057 453,905 Daniel Laikin -- -- -- -- -- -- Douglas Bennett 190,000 49% $ 5.59 10/14/09 1,336,745 1,851,281 James Toll 15,000 4% $ 6.00 6/30/10 105,533 146,154
(1) The options granted to Mr. Jimirro were immediately exercisable. STOCK OPTION AND STOCK APPRECIATION RIGHTS EXERCISES AND YEAR END VALUES Shown below is information for the Named Officers with respect to the exercise of stock options and the ownership of stock options and stock appreciation rights and their values as of July 31, 2003.
Value of Unexercised Number of Unexercised In-the-Money Options/ Options/SARs at July 31, 2003 SARs at July 31, 2003(1) Shares =================================== =============================== Acquired Value Exercisable Unexercisable Exercisable Unexercisable Name On Exercise Realized($) (Shares) (Shares) ($) ($) ============================================================================================================================ James P. Jimirro 66,664 180,037 635,001 -- 52,709 -- Daniel Laikin -- -- 102,333 -- -- -- Douglas Bennett -- -- 37,917 152,083 -- -- James Toll 6,500 16,500 8,500 15,000 -- --
(1) Based upon the difference between the closing price on July 31, 2003 and the option exercise price or stock appreciation rights base price. DIRECTOR COMPENSATION At the organization meeting of the Board of Directors following our annual meeting of shareholders in June 2002, all directors, excluding Mr. Jimirro and Mr. Laikin, were granted options to purchase up to 7,500 shares of our common stock at the market price on the date of grant that are immediately exercisable. Mr. Jimirro's and Mr. Laikin's compensation as directors is pursuant to their employment agreements described under Employment Agreements. EMPLOYMENT AGREEMENTS On May 17, 2002, we entered into a new employment agreement with James P. Jimirro (the "Jimirro Employment Agreement"). The Jimirro Employment Agreement will terminate on December 31, 2007; provided, however, that if Mr. Jimirro remains employed by us on December 31, 2003, the Jimirro Employment Agreement will automatically be extended for an additional year. As of December 31, 2004 and December 31 of each year thereafter, so long as Mr. Jimirro remains employed by us on such date, the Jimirro Employment Agreement will again be automatically extended for an additional year so that at no time will the remaining term under the Jimirro Employment Agreement be less than five years. The Jimirro Employment Agreement will provide Mr. Jimirro with an annual salary of $500,000 and, commencing on January 31, 2003 and continuing on the last day of each month thereafter during the period that Jimirro is employed by us, will provide for the monthly grant by the Company to Mr. Jimirro of fully vested options to purchase 5,000 shares of our common stock. Pursuant to the Jimirro Employment Agreement, Mr. Jimirro will receive fifty percent of our gross receipts from the movie National Lampoon's Van Wilder. The Jimirro Employment Agreement also provides Mr. Jimirro with other benefits, including medical and life insurance, an automobile and the reimbursement of business expenses. The Jimirro Employment Agreement is terminable by us without Cause (as defined below) or for convenience after December 31, 2002 upon written notice to Mr. Jimirro, payment to Mr. Jimirro of a cash severance payment in the amount of $1,400,000, and delivery of a promissory note providing for our payment to Mr. Jimirro of $1,000,000 in twelve equal monthly installments. Prior to December 31, 2002, the Jimirro Employment Agreement will only be terminable by us for Cause. For us to terminate Mr. Jimirro for Cause under the Jimirro Employment Agreement, six of the members of the Board of Directors (excluding Mr. Jimirro) must determine at a meeting called for such purpose, that Mr. Jimirro is guilty of the conduct triggering the right to terminate him for Cause. Under the Jimirro Employment Agreement, Cause is defined as (i) the willful and continued failure by Mr. Jimirro to substantially perform his duties with us in good faith (other than any such failure resulting from his incapacity due to physical or mental illness or any such actual or anticipated failure resulting from his termination by us for convenience (or without Cause)), after a demand for substantial performance is delivered to him by the Board of Directors that specifically identifies the manner in which the Board of Directors believes that Mr. Jimirro has not substantially performed his duties in good faith; or (ii) the willful engaging by Mr. Jimirro in conduct which is demonstrably and materially injurious to us, monetarily or otherwise. For purposes of the definition of Cause under the Jimirro Employment Agreement, no act, or failure to act, on Mr. Jimirros part shall be considered willful unless done, or omitted to be done, by him in bad faith and without reasonable belief that his action or omission was in our best interest. The Jimirro Employment Agreement is terminable by Mr. Jimirro upon the occurrence of certain events, with Mr. Jimirro being entitled to receive the same severance benefits, including the $1,400,000 cash severance payment and $1,000,000 promissory note (detailed above), as if Mr. Jimirro had been terminated by us without Cause or for convenience. In addition, under the Jimirro Employment Agreement, in the event that Mr. Jimirro incurs an excise tax under the Internal Revenue Code of 1986, as amended (the "Code"), because he receives any compensation or payments from us that constitute excess parachute payments under Section 280G of the Code, we will reimburse Mr. Jimirro for that excise tax, and for the income and excise taxes on such reimbursement on a fully grossed up basis if either (i) Mr. Jimirros employment with us is terminated by us at any time before the first anniversary of the date on which the Reorganization Transactions are consummated, or (ii) after the effectiveness of the Jimirro Employment Agreement a transaction (excluding the Reorganization Transactions, if applicable) involving us occurs that results in Mr. Jimirro incurring such an excise tax. All of our obligations to Mr. Jimirro under the Jimirro Employment Agreement, as well as under an indemnification agreement and a registration rights agreement, are secured by a first priority lien on all of our assets, pursuant to a security agreement between Mr. Jimirro and us, executed in connection with the Reorganization Transactions. DANIEL S. LAIKIN EMPLOYMENT AGREEMENT On May 17, 2002, we entered into an Employment Agreement with Daniel S. Laikin (the "Laikin Employment Agreement") effective for a period of one year and subject to automatic extension for successive one-year terms thereafter unless and until the Board of Directors elects not to renew the Laikin Employment Agreement and notifies Mr. Laikin within sixty days prior to the end of the then-current one-year term of the Employment Agreement or unless the Laikin Employment Agreement has been terminated according to its terms and conditions. 7 Pursuant to the Laikin Employment Agreement, Mr. Laikin receives an annual salary of $200,000. He also was granted options to purchase 100,000 shares of our common stock as of the effective date of the Laikin Employment Agreement, which options were immediately exercisable and will expire, to the extent not exercised, prior to the close of business on the day ten years from the date of grant. The Laikin Employment Agreement also provides Mr. Laikin with other benefits, including vacation, pension, retirement, medical and life insurance and reimbursement of business expenses. Mr. Laikin has agreed to receive his entire salary in SeriesB Units. The Laikin Employment Agreement may be terminated voluntarily by us at any time during its term for Cause (which is defined as in the Jimirro Employment Agreement described above). For us to terminate Mr. Laikin for Cause, five of the members of the Board of Directors (not including Mr. Laikin) must determine at a meeting held for such purpose that Mr. Laikin is guilty of the conduct triggering the right to terminate him for Cause. If Mr. Laikins employment is terminated by us for Cause, or by Mr. Laikin, in addition to any benefits mandated by law, we shall pay Mr. Laikin his full annual salary in effect at the date of termination and other benefits to which he is entitled through the date of termination at the rate in effect at the time notice of termination is given. DOUGLAS BENNETT EMPLOYMENT AGREEMENT We entered into an at-will employment agreement with Douglas Bennett, effective October 14, 2002 (the "Bennett Employment Agreement"). As there is no specified term, Mr. Bennett is free to resign at any time and we are free to terminate the Bennett Employment Agreement at any time, with or without cause. Mr. Bennett receives a base salary of $175,000 per year, effective December 1, 2002. Mr. Bennett's title is initially Executive Vice President, but will succeed to the title of President when that title becomes available. Mr. Bennett is entitled to calender quarterly bonuses of $31,250, which bonuses are payable in the month subsequent to the end of calender quarter to which they were granted. Concurrent with the signing of the Bennett Employment Agrement, Mr. Bennett was granted options to purchase 135,0000 shares of common stock at the then current market price, which options vest ratably over a 3 year period. Mr. Bennett is also entitled to an option grant of 50,000 shares of common stock for the period January 3, 2003 through June 3, 2003 and an option grant of 50,000 shares of common stock for the period July 3, 2003 through Decemmber 3, 2003. These options shall also vest ratably over three year periods and are to be issued at then current market prices. Upon a change in control of the Company, all unvested options are to vest immediately. Mr. Bennett is entitled to communte to Los Angeles from his home in the San Francisco area. By December 31 2003, Mr. Bennett, the Chief Executive Officer and the Board of Directors have agreed to decide whether Mr. Bennett should relocate to the Los Angeles area. If Mr. Bennett is "Terminated without Cause" (as such term is defined in the Bennett Employemnt Agreement), or in the event of "Constructive Termination" (as such term is defined in the Bennett Employemnt Agreement), if dies or is disablited, he shall be entitled to: (a) continue his base salary for 6 months; (b) continue his employee beneifts for 6 months; and (c) continue vesting of any outstanding and unvested stock options for 6 months. COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The Employment Agreements with Messrs. Jimirro and Laikin were negotiated as part of the Reorganization Transactions involving Mr. Jimirro and the NLAG Group and were approved by our entire Board of Directors (other than Messrs. Jimirro and Laikin who excused themselves from the meetings during the Boards consideration of the Employment Agreements) at special meetings of the Board of Directors held on April 25, 2002 and May 17, 2002. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth the beneficial ownership of the shares of common stock and Series B Preferred for (i) each person known by the Company to be the beneficial owner of more than five percent of the outstanding shares of common stock or Series B Preferred; (ii) each director; (iii) the Chief Executive Officer and each of the Company's other executive officers named in the Summary Compensation Table; and (iv) the directors and executive officers as a group. Beneficial ownership information in the table is as of November 1, 2003. Unless otherwise indicated, beneficial ownership represents both sole voting and sole investment power. 8
NAME OF BENEFICIAL OWNER COMMON STOCK** SERIES B PREFERRED STOCK - ------------------------ -------------- ------------------------ Number of Shares of Percentage of Shares Number of Shares of Percentage of Shares Beneficially Owned Beneficially Owned Beneficially Owned Beneficially Owned ------------------ ------------------ ------------------ ------------------ DIRECTOR AND EXECUTIVE OFFICER S: (1) James P. Jimirro, 876,887 (2) 40.4% -- -- Chairman of the Board, President and Chief Executive Officer James A. Fellows, 30,833 (3) 2.0% -- -- Director Bruce P. Vann, Director 20,331 (3) 1.3%* -- -- Daniel S. Laikin, Chief 1,945,186 (4) 58.9% 29,796 48.4% Operating Officer and Director Timothy S. Durham, 1,192,203 (4) 47% 17,148 27.9% Director Paul Skjodt, Director 542,247 (4) 28.4% 6,500 10.6% Joshua A. Finkenberg, 15,000 (3) 1.0% -- -- Director Douglas Bennett, 67,069 (5) 4.2% 426 * Executive Vice President James Toll, Chief 15,000 (3) 1.0% -- -- Financial Officer All Executive Officers and Directors as a group (consisting of 9 members) 4,710,756 85.9% 53,587 87.3% OTHER 5% OWNERS: NLAG Group (1), (4) 3,957,329 (4) 82.0 % 56,394 91.9% Ronald Holzer 321,790 (6) 17.8% 5,000 8.1%
* Less than one percent. ** The number of shares of common stock includes the shares of Series B Preferred Stock converted to common stock equivalents. (1) The address for Messrs. Jimirro, Laikin, Fellows and Vann is 10850 Wilshire Blvd., Suite 1000, Los Angeles, California 90024. The address for Mr. Durham and the NLAG Group is 111 Monument Circle, Suite 4800, Indianapolis, Indiana 46204. The address for Mr. Skjodt is 9910 Towne Road, Carmel, Indiana 46032. The address for Mr. Finkenberg is 4080 Front Street, Suite 105, San Diego, California 92123. The address for Mr. Holzer is 600 Central Avenue, Suite 240, Highland Park, Illinois 60035. (2) Includes options to purchase 645,001 shares of common stock. (3) Consists of options to purchase shares of common stock. (4) The following individuals and entities are referred to collectively as the NLAG Group: Daniel Laikin; Paul Skjodt; Timothy S. Durham; Diamond Investments, LLC; DC Investments, LLC; Judy B. Laikin; Betty A. Morgan; Samerian LLP; and DW Leasing Company, LLC. Each member of the NLAG Group may be deemed to beneficially own all of the shares of common stock that are deemed to be beneficially owned collectively by the NLAG Group, which includes shares of common stock that the members could acquire upon the conversion of shares of Series B Preferred and pursuant to warrants and options. As of October 1, 2003, the individual members of the NLAG Group have the following holdings: (a) Mr. Durham directly owns 73,200 shares of common stock, 12,648 shares of Series B Preferred and warrants to acquire 356,282 shares of common stock. He also has the right to acquire 15,000 shares of common stock pursuant to stock options. Mr. Durham may be deemed to share voting and dispositive power with respect to the securities listed below for Diamond Investments, LLC and DC Investments, LLC, for both of which Mr. Durham serves as Managing Member, and DW Leasing Company, LLC, in which Mr. Durham has an ownership interest. (b) Mr. Laikin directly owns 168,150 shares of common stock, 29,726 shares of Series B Preferred and warrants to acquire 837,352 shares of common stock. He also has the right to acquire 102,333 shares of common stock pursuant to stock options. He may be deemed to share voting and dispositive power with respect to securities listed below for Judy B. Laikin. (c) Mr. Skjodt directly owns 141,050 shares of Common Stock, 6,500 shares of Series B Preferred and warrants to acquire 183,099 shares of common stock. He also has the right to acquire 15,000 shares of common stock pursuant to stock options. He may be deemed to share voting and dispositive power with respect to the securities listed below for Samerian LLP, in which Mr. Skjodt is a Partner. (d) Diamond Investments, LLC directly owns 92,399 shares of common stock. (e) DC Investments, LLC directly owns 5,000 shares of Series B Preferred and warrants to purchase 140,845 shares of common stock. (f) Judy B. Laikin directly owns 26,000 shares of common stock. (g) Betty A. Morgan owns 121,721 shares of common stock, 2,307 shares of Series B Preferred and warrants for 64,986 shares of common stock. (h) Samerian LLP directly owns 20,000 shares of common stock. (i) DW Leasing Company, LLC directly owns 17,350 shares of common stock. Each member of the NLAG Group disclaims beneficial ownership of the securities held by the other members of the NLAG Group. 9 (5) Consists of options to acqurie 55,069 shares of common stock, 213 shares of Series of Series B Preferred and warrants to acquire 6,000 shares of common stock. (6) Includes 5,000 shares of Series B Preferred and warrants to purchase 140,845 shares of common stock.
EQUITY COMPENSATION PLAN INFORMATION =================================== ================= ================== ==================================================== Plan category Number of Weighted-average Number of securities remaining available for future Securities exercise price of issuance under equity compensation plans To be issued outstanding (excluding securities reflected in column (a)) Upon exercise of options outstanding warrants and options rights warrants and rights =================================== ================= ================== ==================================================== Equity Compensation plans approved by security holders 5,304,323(1) 4.37 59,834(2) ================================= ================= ================== ==================================================== Equity compensation plans not approved by security holders ================================= ================= ================== ==================================================== Total: 5,304,323(1) 4.37 59,834(2) ================================= ================= ================== ====================================================
1) Includes 63,607 Series B Preferred units authorized. The units include one share of Series B Preferred and one warrant. Both the Series B Preferred and the warrant can be converted into 28.169 shares of common stock. 2) The Amended and Restated 1999 Stock Option Plan reserved and made available for issuance 1,500,000 shares of our common stock, 1,440,166 options have been granted as of November 6, 2003. 10 PART IV ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K. (a) Exhibits (numbered in accordance with Item 601 of Regulation S-K)
3.1 Company's Certificate of Incorporation 3.2 Company's Bylaws 31.1 Certification pursuant to Section 302 of Sarbanes-Oxley - James P. Jimirro 31.2 Certification pursuant to Section 302 of Sarbanes-Oxley - James Toll 32 Certification pursuant to Section 906 of Sarbanes-Oxley
SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized. Date: December 18, 2003 By: /s/ James P. Jimirro --------------------------------------- James P. Jimirro, Chief Executive Officer By: /s/ James Toll --------------------------------------- James Toll, Chief Financial Officer 11 EX-3.1 3 certifofincorp.txt CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. The undersigned incorporator, desiring to form a corporation (the "CORPORATION") pursuant to the provisions of the Delaware General Corporation Law, as amended (the "LAW"), executes the following Certificate of Incorporation: ARTICLE 1. NAME. The name of the Corporation is National Lampoon, Inc. ARTICLE 2. REGISTERED AGENT AND REGISTERED OFFICE. The name and address of the Corporation's Registered Agent and the address of its Registered Office is: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, County of New Castle, Wilmington, DE 19801. ARTICLE 3. PURPOSES. The purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the Law. ARTICLE 4. STOCK. The aggregate number of shares of capital stock that the Corporation shall have authority to issue is Seventeen Million (17,000,000) shares, consisting of Fifteen Million (15,000,000) shares of common stock with a par value of $0.0001 per share ("COMMON STOCK") and Two Million (2,000,000) shares of preferred stock with a par value of $0.0001 per share ("PREFERRED STOCK"). ARTICLE 5. PREFERRED STOCK. Section 5.1 DETERMINING RIGHTS OF PREFERRED STOCK. Subject to the provisions of this Article 5 relating to the Series B Convertible Preferred Stock of the Corporation, (a) the Preferred Stock may be issued in any number of series, as determined by the board of directors of the Corporation (the "BOARD OF DIRECTORS" or the "BOARD"), (b) the Board may by resolution fix the designation and number of shares of any such series of Preferred Stock and may determine, alter or revoke the rights, preferences, privileges and restrictions pertaining to any wholly unissued series, and (c) the Board may thereafter in the same manner increase or decrease the number of shares of any such series (but not below the number of shares of that series then outstanding). - -------------------------------------------------------------------------------- 137703.3 Section 5.2 ESTABLISHMENT OF SERIES B PREFERRED STOCK. There is hereby established, authorized and created a series of the authorized Preferred Stock of the Corporation, $0.0001 par value per share, which series shall be designated as "Series B Convertible Preferred Stock" and which series of Preferred Stock (the "SERIES B PREFERRED STOCK") shall consist of Sixty Eight Thousand Four Hundred Six (68,406) authorized shares having the following preferences, rights, qualifications, limitations and restrictions: Section 5.2.1. DIVIDEND RIGHTS. The Corporation shall have the right to issue dividends and make distributions, whether cash, securities or otherwise, whether or not any shares of the Series B Preferred Stock are outstanding. The holders of Series B Preferred Stock shall have a right to participate in such dividends and distributions (including, without limitation, share dividends or distributions) to the extent that the holders of Common Stock participate, and the holders of Series B Preferred Stock shall receive a like dividend or distribution, pro rata and pari passu with the holders of Common Stock, with all holders of Series B Preferred Stock being treated as if they were holders of the number of shares of Common Stock into which their shares of Series B Preferred Stock could be converted in accordance with Section 5.2.4; provided, further, that no dividend or distribution shall be paid unless such dividends or distributions are sufficient to pay in full all amounts due to the holders of the Series B Preferred Stock and the holders of the Common Stock. Section 5.2.2. VOTING RIGHTS. Except as otherwise provided herein or as required by law, the holders of Series B Preferred Stock shall vote, or act by written consent, as a single class with the holders of Common Stock of the Corporation, and not as a separate class, in the same manner and with the same voting rights, privileges and number of votes as if they were holders of the number of shares of Common Stock into which their shares of Series B Preferred Stock could be converted in accordance with Section 5.2.4. Section 5.2.3. LIQUIDATION RIGHTS. Upon any liquidation, dissolution, or winding up of the Corporation, whether voluntary or involuntary, the assets of the Corporation legally available for distribution, if any, shall be distributed ratably to the holders of the Common Stock and the Series B Preferred Stock, with all holders of Series B Preferred Stock being treated as if they were holders of the number of shares of Common Stock into which their shares of Series B Preferred Stock could be converted in accordance with Section 5.2.4. Section 5.2.4. CONVERSION RIGHTS. The holders of Series B Preferred Stock shall have the following rights with respect to the conversion of Series B Preferred Stock into Common Stock (the "CONVERSION RIGHTS"): (A) RIGHT TO CONVERT. Subject to and in compliance with the provisions of this Section 5.2.4, any shares of Series B Preferred Stock may, at the option of the holder, be converted at any time into fully paid and nonassessable shares of Common Stock. The number of shares of Common Stock to which a holder of one share of Series B Preferred Stock shall be entitled upon conversion shall be 28.169 shares (the "CONVERSION RATE"), subject to adjustment as provided in Section 5.2.4(c). - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 2 137703.3 (B) MECHANICS OF CONVERSION. Each holder of Series B Preferred Stock who desires to convert the same into shares of Common Stock pursuant to this Section 5.2.4 shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or any transfer agent for Series B Preferred Stock, and shall give written notice to the Corporation at such office that such holder elects to convert to Common Stock the number of shares of Series B Preferred Stock stated in such notice. Thereupon, the Corporation shall promptly issue and deliver at such office to such holder a certificate or certificates for the number of shares of Common Stock to which such holder is entitled, and (if applicable) a certificate for the balance of any shares of Series B Preferred Stock surrendered but not converted. Such conversion shall be deemed to have been made at the close of business on the date of such surrender of the certificates representing the shares of Series B Preferred Stock to be converted, and the person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on such date. (C) ADJUSTMENT FOR STOCK SPLITS AND REVERSE STOCK SPLITS. If the Corporation shall at any time or from time to time after the date that the first shares of Series B Preferred Stock are issued (the "ORIGINAL ISSUE DATE") effect a split of the outstanding Common Stock, the Conversion Rate in effect immediately before that split shall be proportionately increased. Conversely, if the Corporation shall at any time or from time to time after the Original Issue Date effect a reverse split of the outstanding shares of Common Stock, the Conversion Rate in effect immediately before the reverse split shall be proportionately decreased. Any adjustment under this Section 5.2.4(c) shall become effective at the close of business on the date the split or reverse split of Common Stock becomes effective. (D) FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon conversion of Series B Preferred Stock. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series B Preferred Stock by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Corporation shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the fair market value of a share of the Common Stock on the date of conversion (as determined in good faith by the Board of Directors). (E) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of Series B Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Series B Preferred Stock. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of Series B Preferred Stock, the Corporation shall take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. (F) NOTICES. Any notice required by the provisions of this Section 5.2.4 shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices shall be addressed to each holder of record at the address of such holder appearing on the books of the Corporation. - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 3 137703.3 (G) PAYMENT OF TAXES. The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series B Preferred Stock, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series B Preferred Stock so converted were registered. (H) NO IMPAIRMENT. The Corporation shall not amend its Articles of Incorporation or Bylaws or participate in any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, for the purpose of avoiding or seeking to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but shall at all times in good faith assist in carrying out all actions as may be reasonably necessary or appropriate in order to protect the conversion rights of the holders of Series B Preferred Stock against impairment. Section 5.2.5. NO REISSUANCE OF SERIES B PREFERRED STOCK. No share or shares of Series B Preferred Stock acquired by the Corporation by reason of redemption, purchase, conversion or otherwise shall be reissued, and all such shares shall be cancelled, retired and eliminated from the shares the Corporation is authorized to issue. Section 5.2.6. NEGATIVE COVENANTS OF THE CORPORATION. So long as any shares of Series B Preferred Stock remain outstanding, except with the prior written consent of the holders of a majority of the then outstanding Series B Preferred Stock, the Corporation shall not: (a) amend, alter or repeal any rights, preferences or privileges of, or any restrictions provided for the benefit of, the Series B Preferred; (b) amend the Certificate of Incorporation or the Bylaws of the Corporation to adversely affect the rights of the holders of the Series B Preferred Stock; (c) authorize, create or issue (by reclassification or otherwise) any shares of any class or series of stock having preferences senior to the Series B Preferred Stock; (d) amend or repeal this Section 5.2.6. - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 4 137703.3 ARTICLE 6. INCORPORATOR. James P. Jimirro 10850 Wilshire Boulevard Los Angeles, California 90024 ARTICLE 7. DIRECTORS. Section 7.1 DIRECTORS - NUMBER - INITIAL DIRECTOR. The number of directors may be fixed, from time to time, in the manner provided in the Bylaws of the Corporation at any number. Initially, and until changed in the manner provided by the Bylaws, the Corporation shall have one Director. The initial director is James P. Jimirro, 10850 Wilshire Boulevard, Los Angeles, California 90024. Section 7.2 DIRECTORS - ELECTION. The election of directors need not be by written ballot. Section 7.3 BYLAWS. Subject to any limitations set forth in the Bylaws, the Board of Directors shall have the power to adopt, amend or repeal the Bylaws of the Corporation, subject to the power of the stockholders to amend or repeal such Bylaws as provided in, and subject to the provisions of, the Law. ARTICLE 8. APPLICABILITY OF SECTION 203 Pursuant to Section 203(b)(1) of the Law, the Corporation elects not to be governed by Section 203 of the Law. ARTICLE 9. AMENDMENT The Corporation reserves the right to alter, amend and repeal any provisions contained in this Certificate of Incorporation in the manner now or hereafter prescribed by the provisions of the Law or any other pertinent enactment of the General Assembly of the State of Delaware and all rights and powers conferred hereby on stockholders, directors and officers of the Corporation are subject to such reserved right. ARTICLE 10. PROVISIONS FOR REGULATION OF BUSINESS AND CONDUCT OF AFFAIRS OF CORPORATION. Section 10.1 ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS. To the fullest extent permitted by the Law, as the same exists or as may hereafter be amended, a director (including any advisory directors) of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to this Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Law, or (iv) for any transaction from which the director derived any improper personal benefit. Without limiting the effect of the preceding sentence, if the Law is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of the director of this Corporation shall be eliminated or limited to the fullest extent permitted by Law, as so amended. Section 10.2 INDEMNIFICATION. The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation. - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 5 137703.3 Section 10.3 AMENDMENT OR REPEAL. Neither any amendment nor repeal of this Article 10, nor the adoption of any provision of the Corporation's Certificate of Incorporation inconsistent with this Article 10, shall eliminate, reduce, or otherwise adversely affect the effect of this Article 10 in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article 10, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. ARTICLE 11. INDEMNIFICATION OF AGENTS. To the fullest extent permitted by applicable law, this Corporation is authorized to provide indemnification of (and advancement of expenses to) agents of this Corporation (and any other persons to which Delaware law permits this Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to this Corporation, its stockholders and others. ARTICLE 12. STOCKHOLDER ACTION BY WRITTEN CONSENT. Any action which may be taken at any annual or special meeting of stockholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted. In the case of election of directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors; provided, however, that a director may be elected at any time to fill a vacancy on the Board of Directors that has not been filled by the directors, by the written consent of the holders of a majority of the outstanding shares entitled to vote for the election of directors. All such consents shall be filed with the Secretary of the corporation and shall be maintained in the corporate records. Any stockholder giving a written consent, or the stockholder's proxyholders, or a transferee of the shares or a personal representative of the stockholder or their respective proxyholders, may revoke the consent by a writing received by the Secretary of the corporation before written consents of the number of shares required to authorize the proposed action have been filed with the Secretary. If the consents of all stockholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such stockholders shall not have been received, the Secretary shall give prompt notice of the corporate action approved by the stockholders without a meeting. This notice shall be delivered in the manner provided in the Bylaws. In the case of approval of (i) contracts or transactions in which a director has a direct or indirect financial interest pursuant to Section 144 of the Law, (ii) indemnification of the directors, officers, employees and agents of the Corporation pursuant to Section 145 of the Law, (iii) a sale, lease or exchange of assets pursuant to Section 271 of the Law, (iv) a dissolution pursuant to Section 275 of the Law, and (v) a merger pursuant to Sections 251, 252, 254, 255, 256, 257 and 258 of the Law, the notice shall be given at least ten (10) days before the consummation of any action authorized by that approval. - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 6 137703.3 I, JAMES P. JIMIRRO, BEING THE INCORPORATOR HEREINBEFORE NAMED FOR THE PURPOSE OF FORMING A CORPORATION PURSUANT TO THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE, DO MAKE THIS CERTIFICATE, HEREBY DECLARING AND CERTIFYING, SUBJECT TO THE PENALTIES OF PERJURY, THAT THIS IS MY ACT AND DEED AND THE FACTS HEREIN STATED ARE TRUE, AND ACCORDINGLY, I HAVE HEREUNTO SET MY HAND THIS 23RD DAY OF AUGUST, 2002. ----------------------------------- James P. Jimirro, Incorporator - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 7 137703.3 This instrument was prepared by Robert V. Kixmiller, Leagre Chandler & Millard LLP, 1400 First Indiana Plaza, 135 North Pennsylvania Street, Indianapolis, Indiana 46204-2415. - -------------------------------------------------------------------------------- CERTIFICATE OF INCORPORATION OF NATIONAL LAMPOON, INC. PAGE 8 137703.3 EX-3.2 4 bylaws.txt BYLAWS OF NATIONAL LAMPOON, INC. (A DELAWARE CORPORATION) (AS ADOPTED AUGUST 27, 2002) ARTICLE 1. OFFICES SECTION 1.1 PRINCIPAL OFFICE. The principal executive office for the transaction of the business of this corporation shall be at 10850 Wilshire Boulevard, Suite 100, Los Angeles, California 90024. The Board of Directors is hereby granted full power and authority to change the location of the principal executive office from one location to another. SECTION 1.2 OTHER OFFICES. One or more branch or other subordinate offices may at any time be fixed and located at such place or places within or without the State of Delaware as the Board of Directors deems appropriate. ARTICLE 2. DIRECTORS SECTION 2.1 EXERCISE OF CORPORATE POWERS. Except as otherwise provided by these Bylaws, by the Certificate of Incorporation of this corporation as in effect from time to time, or by the laws of the State of Delaware now or hereafter in force, the business and affairs of this corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors. SECTION 2.2 NUMBER. Initially, the number of directors of this corporation shall be one (1). Immediately upon the filing of a Certificate of Merger with the Delaware Secretary of State, reflecting the merger of J2 Communications with and into this corporation, with this corporation being the survivor, then, without further action by the stockholders or Board of Directors, the number of directors of this corporation shall be increased to seven (7). SECTION 2.3 POWERS AND DUTIES. Without limiting the generality or extent of the general corporate powers to be exercised by the Board of Directors pursuant to Section 2.1 of these Bylaws, it is hereby provided that the Board of Directors shall have full power with respect to the following matters: (a) To purchase, lease, and acquire any and all kinds of property, real, personal or mixed, and at its discretion to pay therefor in money, in property and/or in stocks, bonds, debentures or other securities of this corporation. (b) To enter into any and all contracts and agreements which in its judgment may be beneficial to the interests and purposes of this corporation. (c) To fix and determine and to vary from time to time the amount or amounts to be set aside or retained as reserve funds or as working capital of this corporation or for maintenance, repairs, replacements or enlargements of its properties. - -------------------------------------------------------------------------------- 138437.3 (d) To declare and pay dividends in cash, shares and/or property out of any funds of this corporation at the time legally available for the declaration and payment of dividends on its shares. (e) To adopt such rules and regulations for the conduct of its meetings and the management of the affairs of this corporation as it may deem proper. (f) To prescribe the manner in which and the person or persons by whom any or all of the checks, drafts, notes, bills of exchange, contracts and other corporate instruments shall be executed. (g) To accept resignations of directors and, in case of vacancy in the office of directors, to fill the same to the extent provided in Section 2.6 hereof. (h) To create offices in addition to those for which provision is made by law or these Bylaws; to elect and remove at pleasure all officers of this corporation, fix their terms of office, prescribe their powers and duties, limit their authority and fix their salaries in any way it may deem advisable which is not contrary to law or these Bylaws; and, if it sees fit, to require from the officers or any of them security for faithful service. (i) To designate some person to perform the duties and exercise the powers of any officer of this corporation during the temporary absence or disability of such officer. (j) To appoint or employ and to remove at pleasure such agents and employees as it may see fit, to prescribe their titles, powers and duties, limit their authority, and fix their salaries in any way it may deem advisable which is not contrary to law or these Bylaws; and, if it sees fit, to require from them or any of them security for faithful performance. (k) To fix a time in the future, which shall not be more than sixty (60) days nor less than ten (10) days prior to the date of the meeting nor more than sixty (60) days prior to any other action for which it is fixed, as a record date for the determination of the stockholders entitled to notice of and to vote at any meeting, or entitled to receive any payment of any dividend or other distribution, or allotment of any rights, or entitled to exercise any rights in respect of any other lawful action; and in such case only stockholders of record on the date so fixed shall be entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of this corporation after any record date fixed as aforesaid. The Board of Directors may close the books of this corporation against transfers of shares during the whole or any part of such period. (l) To fix and locate from time to time the principal office for the transaction of the business of this corporation and one or more branch or other subordinate office or offices of this corporation within or without the State of Delaware; to designate any place within or without the State of Delaware for the holding of any meeting or meetings of the stockholders or the Board of Directors, as provided in Sections 10.1 and 11.1 hereof; to adopt, make and use a corporate seal, and to prescribe the forms of certificates for shares and to alter the form of such seal and of such certificates from time to time as in its judgment it may deem best, provided such seal and such certificates shall at all times comply with the provisions of law now or hereafter in effect. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 2 138437.3 (m) To authorize the issuance of shares of stock of this corporation in accordance with the laws of the State of Delaware and the Certificate of Incorporation of this corporation. (n) Subject to the limitation provided in Articles 14 hereof, to adopt, amend or repeal from time to time and at any time these Bylaws and any and all amendments thereof. (o) To borrow money and incur indebtedness on behalf of this corporation, including the power and authority to borrow money from any of the stockholders, directors or officers of this corporation, and to cause to be executed and delivered therefor in the corporate name promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, or other evidences of debt and securities therefore; the note or other obligation given for any indebtedness of this corporation, signed officially by any officer or officers thereunto duly authorized by the Board of Directors shall be binding on this corporation. (p) To designate and appoint committees of the Board of Directors as it may see fit, to prescribe their names, powers and duties and limit their authority in any way it may deem advisable which is not contrary to law or these Bylaws. (q) Generally to do and perform every act and thing whatsoever that may pertain to the office of a director or to a board of directors. SECTION 2.4 COMPENSATION. Directors and members of committees may receive such compensation, if any, for their services as may be fixed or determined by resolution of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving this corporation in any other capacity and receiving compensation therefor. SECTION 2.5 ELECTION AND TERM OF OFFICE; RESIGNATION. The directors shall be elected annually at the annual meeting of the stockholders. Each director shall hold such office until his or her successor shall have been duly elected and qualified or until his or her earlier death, resignation or removal. Any director may resign effective upon giving written notice to the Chairman of the Board, if any, the President, the Secretary or the Board of Directors of this corporation, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. A reduction of the authorized number of directors shall not remove any director prior to the expiration of such director's term of office. SECTION 2.6 VACANCIES. A vacancy or vacancies on the Board of Directors shall exist in case of the death, resignation or removal of any director, or if the authorized number of directors is increased, or if the stockholders fail, at any annual meeting of stockholders at which any director is elected, to elect the full authorized number of directors to be voted for at that meeting. Any vacancy, except for a vacancy created by removal of a director as provided in Section 2.7 hereof, may be filled in accordance with any applicable procedures for filling same in the Certificate of Incorporation or in a resolution or resolutions of the Board of Directors creating a class or series of stock of this corporation, and in the absence of any such applicable procedures by a person selected by a majority of the remaining directors then in office, whether or not less than a quorum, or by a sole remaining director. Vacancies occurring in the Board of Directors by reason of removal of directors under Section 2.7 shall be filled only by approval of the stockholders. The stockholders may elect a director at any time to fill any vacancy not filled by the directors. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 3 138437.3 SECTION 2.7 REMOVAL. The entire Board of Directors or any individual director may be removed without cause from office by an affirmative vote of a majority of the outstanding shares then entitled to vote at an election of directors. If any or all directors are so removed, new directors may be elected at the same meeting or at a subsequent meeting. If at any time a class or series of shares is entitled to elect one or more directors under authority granted by the Certificate of Incorporation of this corporation, the provisions of this Section shall apply to the vote of that class or series and not to the vote of the outstanding shares as a whole. SECTION 2.8 INSPECTION. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and the physical properties of the corporation and each of its subsidiary corporations. This inspection by a director may be made in person or by an agent or attorney and the right of inspection includes the right to copy and make extracts of documents. ARTICLE 3. OFFICERS SECTION 3.1 ELECTION AND QUALIFICATIONS. The officers of this corporation shall consist of a President, Chief Executive Officer (which may be abbreviated as CEO), Chief Operating Officer (which may be abbreviated as COO), one or more Vice Presidents, a Secretary, a Treasurer and/or Chief Financial Officer and such other officers, including, but not limited to, a Chairman of the Board of Directors, and Assistant Secretaries and Assistant Treasurers, as the Board of Directors shall deem expedient, who shall be chosen in such manner and hold their offices for such terms as the Board of Directors may prescribe. Any two or more of such offices may be held by the same person. Any CEO, COO, Vice President, Assistant Treasurer or Assistant Secretary, respectively, may exercise any of the powers of the President, the Treasurer and/or Chief Financial Officer, or the Secretary, respectively, as directed by the Board of Directors, and shall perform such other duties as are imposed upon him or her by the Bylaws or the Board of Directors. SECTION 3.2 TERM OF OFFICE AND COMPENSATION. The term of office and salary of each of the officers and the manner and time of the payment of such salaries shall be fixed and determined by the Board of Directors and may be altered by the Board from time to time at its pleasure, subject to the rights, if any, of an officer under any contract of employment. Any officer may resign at any time upon written notice to this corporation, without prejudice to the rights, if any, of this corporation under any contract to which the officer is a party. If any vacancy occurs in any office of this corporation, the Board of Directors may elect a successor to fill such vacancy. ARTICLE 4. CHAIRMAN OF THE BOARD SECTION 4.1 POWERS AND DUTIES. The Chairman of the Board of Directors, if there be one, shall have the power to preside at all meetings of the Board of Directors and shall have such other powers and shall be subject to such other duties as the Board of Directors may from time to time prescribe. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 4 138437.3 ARTICLE 5. PRESIDENT AND CHIEF EXECUTIVE OFFICER SECTION 5.1 POWERS AND DUTIES. The powers, duties and reporting responsibilities of the President and Chief Executive Officer (which officer is sometimes referred to in these Bylaws simply as the President) are: (a) To act as a general manager of this corporation and, subject to the control of the Board of Directors, to have general supervision, direction and control of the business and affairs of this corporation. (b) To preside at all meetings of the stockholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. If neither the Chairman of the Board, the President, the Chief Operating Officer nor any Vice President is present at any meeting of the Board of Directors, a President pro tem may be chosen to preside and act at such meeting. If neither the President, the Chief Operating Officer nor any Vice President is present at any meeting of the stockholders, a President pro tem may be chosen to preside at such meeting. (c) To affix the signature of this corporation to all deeds, conveyances, mortgages, leases, obligations, bonds, certificates and other papers and instruments in writing which have been authorized by the Board of Directors or which, in the judgment of the President as limited by Section 12.9 of these Bylaws, should be executed on behalf of this corporation; to sign certificates for shares of stock of this corporation; and, subject to the direction of the Board of Directors, to have general charge of the property of this corporation. The President shall report directly to the Board. ARTICLE 6. CHIEF OPERATING OFFICER SECTION 6.1 POWERS AND DUTIES. The Chief Operating Officer shall have general operational control of the business and affairs of this corporation and shall report directly to the Board. In case of the absence, disability or death of the President, the Chief Operating Officer shall exercise all of the powers and perform all the duties of the President. The Chief Operating Officer shall also have such additional powers and duties as may be prescribed by the Board. ARTICLE 7. VICE PRESIDENT, SECRETARY, TREASURER AND/OR CHIEF FINANCIAL OFFICER SECTION 7.1 VICE PRESIDENT. The titles, powers and duties of the Vice President or Vice Presidents shall be prescribed by the Board of Directors. In case of the absence, disability or death of both the President and the Chief Operating Officer, the Vice President, or one of the Vice Presidents, shall exercise all of their powers and perform all of their duties. If there is more than one Vice President, the order in which the Vice Presidents shall succeed to the powers and duties of the President and Chief Operating Officer shall be as fixed by the Board of Directors. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 5 138437.3 SECTION 7.2 SECRETARY. The powers and duties of the Secretary are: (a) To keep a book of minutes at the principal executive office of this corporation, or such other place as the Board of Directors may order, of all meetings (and actions taken by written consent) of its directors and stockholders with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at directors' meetings, the number of shares present or represented at stockholders' meetings and the proceedings thereof. (b) To keep the seal of this corporation and to affix the same to all instruments which may require it. (c) To keep or cause to be kept at the principal executive office of this corporation, or at the office of the transfer agent or agents, a record of the stockholders of this corporation, giving the names and addresses of all stockholders and the number and class of shares held by each, the number and date of certificates issued for shares and the number and date of cancellation of every certificate surrendered for cancellation. (d) To keep a supply of certificates for shares of this corporation, to fill in all certificates issued, and to make a proper record of each such issuance; provided that so long as this corporation shall have one or more duly appointed and acting transfer agents of the shares, or any class or series of shares, of this corporation, such duties with respect to such shares shall be performed by such transfer agent or transfer agents. (e) To transfer upon the share books of this corporation any and all shares of this corporation; provided that so long as this corporation shall have one or more duly appointed and acting transfer agents of the shares, or any class or series of shares, of this corporation, such duties with respect to such shares shall be performed by such transfer agent or transfer agents, and the method of transfer of each certificate shall be subject to the reasonable regulations of the transfer agent to which the certificate is presented for transfer and, also, if this corporation then has one or more duly appointed and acting registrars, subject to the reasonable regulations of the registrar to which a new certificate is presented for registration; and provided, further, that no certificate for shares of stock shall be issued or delivered or, if issued or delivered, shall have any validity whatsoever until and unless it has been signed or authenticated in the manner provided in Section 12.3 hereof. (f) To make service and publication of all notices that may be necessary or proper and without command or direction from anyone. In case of the absence, disability, refusal or neglect of the Secretary to make service or publication of any notices, then such notices may be served and/or published by the President or a Vice President, or by any person thereunto authorized by either of them or by the Board of Directors or by the holders of a majority of the outstanding shares of this corporation. (g) Generally to do and perform all such duties as pertain to such office and as may be required by the Board of Directors. SECTION 7.3 TREASURER AND/OR CHIEF FINANCIAL OFFICER. The powers and duties of the Treasurer and/or Chief Financial Officer are: (a) To supervise and control the keeping and maintaining of adequate and correct accounts of this corporation's properties and business transactions, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares. The books of account shall at all reasonable times be open to inspection by any director. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 6 138437.3 (b) To have the custody of all funds, securities, evidences of indebtedness and other valuable documents of this corporation and, at his or her discretion, to cause any or all thereof to be deposited for the account of this corporation with such depository as may be designated from time to time by the Board of Directors. (c) To receive or cause to be received, and to give or cause to be given, receipts and acquittances for moneys paid in for the account of this corporation. (d) To disburse, or cause to be disbursed, all funds of this corporation as may be directed by the President or the Board of Directors, taking proper vouchers for such disbursements. (e) To render to the President or to the Board of Directors, whenever either may require, accounts of all transactions as such officer or the Board may require and of the financial condition of this corporation. (f) Generally to do and perform all such duties as pertain to such office and as may be required by the Board of Directors. ARTICLE 8. DIVISIONS SECTION 8.1 DIVISIONS. The Board shall have the power, in the exercise its discretion, to appoint additional persons to hold positions and titles such as vice president of a division of the corporation or president of a division of the corporation, or similar such titles, as the business of the corporation may require. The minutes shall clearly state that such persons are non-corporate officers appointed pursuant to this Section of these Bylaws. Each such appointee shall have such title, shall serve in such capacity and shall have such authority and perform such duties as the Board shall determine. Appointees may hold titles such as "president" of a division or other group within the corporation, or "vice president" of a division or other group within the corporation. However, any such appointee, absent specific election by the Board as an elected corporate officer, (i) shall not be considered an officer elected by the Board of Directors pursuant to Article 3 of these Bylaws and shall not have the executive powers or authority of corporate officers elected pursuant to such Article 3, (ii) shall not be considered (a) an "officer" of the corporation for the purposes of Rule 3b-2 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "Act") or an "executive officer" of the corporation for the purposes of Rule 3b-7 promulgated under the Act, and similarly shall not be considered an "officer" of the corporation for the purposes of Section 16 of the Act (as such persons shall not be given the access to inside information of the corporation enjoyed by officers of the corporation) or an "executive officer" of the corporation for the purposes of Section 14 of the Act or (b) an "officer" for the purposes of Section 142 of the General Corporation Law of the State of Delaware, except in any such case as otherwise required by law, and (iii) shall be empowered to represent himself or herself to third parties as an appointed vice president, etc., only, and shall be empowered to execute documents, bind the corporation or otherwise act on behalf of the corporation only as authorized by the Board of Directors. An elected officer of the corporation may also serve in an appointed capacity hereunder. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 7 138437.3 ARTICLE 9. COMMITTEES SECTION 9.1 APPOINTMENT AND PROCEDURE. The Board of Directors may, by resolution adopted by a majority of the authorized number of directors, appoint from among its members one or more committees, each consisting of two or more members who shall serve at the pleasure of the Board of Directors. Each of these committees may make its own rules of procedure subject to Section 11.9 hereof, and shall meet as provided by such rules or by a resolution adopted by the Board of Directors (which resolution shall take precedence). A a majority plus one of the members of each committee shall constitute a quorum, and in every case the affirmative vote of a majority of all members of the committee shall be necessary to the adoption of any resolution by such committee. SECTION 9.2 POWERS. Any committee, to the extent provided in the resolution of the Board of Directors appointing 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 this corporation in such manner as the committee may deem best for the interests of this corporation, except with respect to: (a) approving or adopting, or recommending to the stockholders, any action or matter expressly required by Delaware law to be submitted to the stockholders for approval; (b) the filling of vacancies on the Board of Directors or in the committee; (c) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (d) the amendment or repeal of Bylaws or the adoption of new Bylaws; (e) the amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable; (f) a distribution to the stockholders of this corporation, except at a rate or in a periodic amount or within a price range determined by the Board of Directors; and (g) the appointment of other committees of the Board of Directors or the members thereof. ARTICLE 10. MEETINGS OF STOCKHOLDERS SECTION 10.1 PLACE OF MEETINGS. Meetings (whether regular, special or adjourned) of the stockholders of this corporation shall be held at the principal executive office for the transaction of business of this corporation, or at any place within or without the State of Delaware which may be designated by resolution of the Board of Directors. SECTION 10.2 ANNUAL MEETINGS. The annual meeting of the stockholders shall be held at the hour and date each year as may be designated by resolution of the Board of Directors. Such annual meetings shall be held at the place provided pursuant to Section 10.1 hereof. Such annual meetings shall be held for the purpose of the election of directors, for the making of reports of the affairs of this corporation and for the transaction of such other business as has been properly brought before the meeting in accordance with Sections 10.9 and 10.11. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 8 138437.3 SECTION 10.3 SPECIAL MEETINGS. Special meetings of the stockholders for any purpose or purposes whatsoever may be called at any time by the President or by the Board of Directors, or by two or more members thereof, or by one or more holders of shares entitled to cast not less than ten percent (10%) of the votes on the record date established pursuant to Section 10.8. Upon request in writing sent by registered mail to the President or Secretary, or delivered to any such officer in person, by any person or persons entitled to call a special meeting of stockholders (such request, if sent by a stockholder or stockholders, must set forth as to each matter the stockholder or stockholders propose to bring before the meeting: (i) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (ii) the name and address, as they appear on the corporation's books, of the stockholder or stockholders proposing such business, (iii) the classes and number of shares of the corporation beneficially owned by the stockholder or stockholders and (iv) any material interest of the stockholder or stockholders in such business). It shall be the duty of such officer, subject to the immediately succeeding sentence, to cause notice to be given to the stockholders entitled to vote that a special meeting will be held as requested by the person or persons calling the meeting, the date of which meeting (which shall be set by such officer) shall be not less than thirty-five (35) days nor more than sixty (60) days after such request or, if applicable, determination of the validity of such request pursuant to the immediately succeeding sentence. Within seven days after receiving such a written request from a stockholder or stockholders of the corporation, the Board of Directors shall determine whether stockholders owning not less than ten percent (10%) of the shares as of the record date established pursuant to Section 10.8 for such request support the call of a special meeting and notify the requesting party or parties of its finding. Notwithstanding anything to the contrary contained in these Bylaws, if the business sought by any stockholder or stockholders to be transacted at such meeting is the election of directors, such request must also contain the information required by, and otherwise comply with, Section 10.9. SECTION 10.4 NOTICE OF MEETINGS AND BUSINESS TO BE CONDUCTED. Notice of any meeting of stockholders shall be given in writing not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote thereat by the President, the Secretary or an Assistant Secretary, or other person charged with that duty, or if there be no such officer or person, or in case of his or her neglect or refusal, by any director or stockholder. The notice shall state the place, date and hour of the meeting and (a) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted, or (b) in the case of the annual meeting, those matters which the Board of Directors, at the time of the mailing of the notice, intends to present for action by the stockholders, but any proper matter may be presented at the meeting for such action except that notice must be given or waived in writing of any proposal relating to approval of contracts between the corporation and any director of this corporation, amendment of the Certificate of Incorporation, reorganization of this corporation or distribution of this corporation. The notice of any meeting at which directors are to be elected shall include the names of nominees intended at the time of the notice to be presented by management for election. Written notice shall be given by this corporation to any stockholder, either (a) personally or (b) by mail or other means of written communication, charges prepaid, addressed to such stockholder at such stockholder's address appearing on the books of this corporation or given by such stockholder to this corporation for the purpose of notice. If a stockholder gives no address or no such address appears on the books of this corporation, notice shall be deemed to have been given if sent by mail or other means of written communication addressed to the place where the principal executive office of this corporation is located, or if published at least once in a newspaper of general circulation in the county in which such office is located. The notice shall be deemed to have been given at the time when delivered personally or deposited in the United States mail, postage prepaid, or sent by other means of written communication and addressed as hereinbefore provided. An affidavit of delivery or mailing of any notice in accordance with the provisions of this Section, executed by the President, the Secretary, Assistant Secretary or any transfer agent, shall be prima facie evidence of the giving of the notice. If any notice addressed to the stockholder at the address of such stockholder appearing on the books of the corporation is returned to this corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the stockholder at such address, all future notices shall be deemed to have been duly given without further mailing if the same shall be available for the stockholder upon written demand of the stockholder at the principal executive office of this corporation for a period of one year from the date of the giving of the notice to all other stockholders. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 9 138437.3 SECTION 10.5 PROXIES. (a) Every person entitled to vote shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or such person's duly authorized agent and filed with the Secretary of this corporation. No proxy shall be valid (i) after revocation thereof, unless the proxy is specifically made irrevocable and otherwise conforms to this Section and applicable law, or (ii) after the expiration of eleven months from the date thereof, unless the person executing it specifies therein the length of time for which such proxy is to continue in force. (b) A proxy may be revoked by a writing delivered to the Secretary of this corporation stating that the proxy is revoked or by a subsequent proxy executed by, or by attendance at the meeting and voting in person by, the person executing the proxy. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted, a written notice of such death or incapacity is received by this corporation. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the General Corporation Law of the State of Delaware. To the extent not inconsistent with Section 212(e) of the General Corporation Law of the State of Delaware, a proxy which states that it is irrevocable is irrevocable for the period specified therein when it is held by any of the following or a nominee of any of the following: (i) a pledgee, (ii) a person who has purchased or agreed to purchase or holds an option to purchase the shares or a person who has sold a portion of such person's shares in this corporation to the maker of the proxy, (iii) a creditor or creditors of this corporation or the stockholder who extended or continued credit to this corporation or the stockholder in consideration of the proxy if the proxy states that it was given in consideration of such extension or continuation of credit and the name of the person extending or continuing the credit, (iv) a person who has contracted to perform services as an employee of this corporation, if a proxy is required by the contract of employment and if the proxy states that it was given in consideration of such contract of employment, the name of the employee and the period of employment contracted for, (v) a person designated by or under a close corporation stockholder agreement or a voting trust agreement. In addition, a proxy may be made irrevocable if it is given to secure the performance of a duty or to protect a title, either legal or equitable, until the happening of events which, by its terms, discharge the obligation secured by it. Notwithstanding the period of irrevocability specified, the proxy becomes revocable when the pledge is redeemed, the option or agreement to purchase is terminated or the seller no longer owns any shares of this corporation or dies, the debt of this corporation or the stockholder is paid, the period of employment provided for in the contract of employment has terminated or the close corporation stockholder agreement or the voting trust agreement has terminated. In addition, a proxy may be revoked, notwithstanding a provision making it irrevocable, by a purchaser of shares without knowledge of the existence of the provision unless the existence of the proxy and its irrevocability appears on the certificate representing such shares. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 10 138437.3 SECTION 10.6 QUORUM. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting of stockholders shall constitute a quorum for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. Shares shall not be counted to make up a quorum for a meeting if voting of such shares at the meeting has been enjoined or for any reason they cannot be lawfully voted at the meeting. The stockholders present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. SECTION 10.7 ADJOURNED MEETINGS. Any stockholders' meeting, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but, except as provided in Section 10.6 hereof, in the absence of a quorum, no other business may be transacted at such meeting. When a meeting is adjourned for more than 30 days or if after 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 a meeting. Except as aforesaid, it shall not be necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted thereat other than by announcement at the meeting at which such adjournment is taken. At any adjourned meeting the stockholders may transact any business which might have been transacted at the original meeting. SECTION 10.8 VOTING RIGHTS AND REQUIRED VOTES. (a) Only persons in whose names shares entitled to vote stand on the stock records of this corporation at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held or, if some other day be fixed for the determination of stockholders of record pursuant to Section 2.3(k) hereof, then on such other day, shall be entitled to vote at such meeting. Subject to any contrary provision in the Certificate of Incorporation, in a resolution or resolutions of the Board of Directors creating or designating the voting and other privileges of a class or series of shares, or in any applicable statute relating to the election of directors or to other particular matters, in which case any such contrary provision shall control as to the voting rights to be exercised, each such person shall be entitled to one vote for each share. (b) A majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at a meeting of stockholders. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 11 138437.3 (c) In all matters other than the election of directors, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. (d) Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. (e) Where a separate vote by a class or series or classes or series is required, a majority of the outstanding shares of such class or series or 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 and the affirmative vote of the majority of shares of such class or series or classes or series present in person or represented by proxy at the meeting shall be the act of such class or series or classes or series. SECTION 10.9 NOMINATION AND QUALIFICATION OF DIRECTORS. (a) Only persons who are nominated by, or at the direction of, the Board of Directors, or by a stockholder who has given timely written notice to the secretary of this corporation in accordance with this Section 10.9, will be eligible for election as directors of this corporation. For a person to be qualified to serve as a director of this corporation, such person need not be an employee or stockholder of this corporation during their directorship. (b) For any written notice by a stockholder to be timely for purposes of this Section 10.9, such notice must be delivered to or mailed to and received at the principal executive offices of the corporation (i) not less than one hundred twenty (120) days in advance of the annual meeting date, as set by the board of directors, or, if the date of such meeting has not yet been set, one hundred twenty (120) days in advance of the month and day the corporation held its annual meeting for the previous year, (ii) if the date of the annual meeting is advanced or delayed by more than thirty (30) days from the month and day the corporation held its annual meeting for the previous year not less than the later of (x) one hundred twenty (120) days prior to such meeting, or (y) the tenth (10th) day following the date on which notice of such meeting is given to stockholders in accordance with the provisions of Section 10.4 of these Bylaws and (iii) with respect to a previously noticed special meeting of stockholders for the election of directors, the close of business on the seventh (7th) day following the date on which notice of such meeting is first given to stockholders in accordance with the provisions of Section 10.4 of these Bylaws. In no event shall any adjournment of an annual meeting commence a new time period for the giving of stockholders' notice as described above. (c) A stockholder's notice of nomination must set forth: (i) the name and address of the stockholder who intends to make the nomination, (ii) the name and address of the person or persons to be nominated and as to each such person all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended and Item 7 of Rule 14a-101 thereunder, (iii) a representation that such stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, (iv) a description of all arrangements or understandings between such stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by such stockholder and (v) the consent of each nominee to serve as a director of the corporation if so elected. The chairman of any stockholder meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 12 138437.3 SECTION 10.10 VOTING PROCEDURES AND INSPECTORS OF ELECTION. Until such time as this corporation is no longer required to do so, this corporation shall comply with the requirements set forth in Section 231 of the General Corporation Law of the State of Delaware (which relate to voting procedures and the appointment of inspectors of election). SECTION 10.11 ACTION AT ANNUAL MEETINGS OF STOCKHOLDERS. (a) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be: (1) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors in accordance with Section 10.4 of these Bylaws, (2) otherwise properly brought before the meeting by or at the direction of the board of directors in accordance with applicable law, or (3) otherwise properly brought before an annual meeting by a stockholder in accordance with Section 10.11(b) and 10.11(c) infra or, in the case of nominations for elections to the Board of Directors, in accordance with Section 10.9 above. (b) For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the secretary of the corporation. For a stockholder's notice relating to an annual meeting of stockholders to be timely, such notice must be delivered to or mailed to and received at the principal executive offices of the corporation (i) not less than one hundred twenty (120) days in advance of the annual meeting date, as set by the board of directors, or, if the date of such meeting has not yet been set, one hundred twenty (120) days in advance of the month and day the corporation held its annual meeting for the previous year, (ii) if the date of the annual meeting is advanced or delayed by more than thirty (30) days from the month and day the corporation held its annual meeting for the previous year not less than the later of (x) one hundred twenty (120) days prior to such meeting, or (y) the tenth (10th) day following the date on which notice of such meeting is given to stockholders in accordance with the provisions of Section 10.4 of these Bylaws and (iii) with respect to a previously noticed special meeting of stockholders for the election of directors, the close of business on the seventh (7th) day following the date on which notice of such meeting is first given to stockholders in accordance with the provisions of Section 10.4 of these Bylaws. In no event shall any adjournment of an annual meeting commence a new time period for the giving of stockholders' notice as described above. (c) A stockholder's notice to the corporation proposing business to be conducted at an annual meeting must set forth as to each matter the stockholder proposes to bring before the meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (iii) the classes and number of shares of the corporation beneficially owned by the stockholder and (iv) any material interest of the stockholder in such business. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 13 138437.3 (d) No business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 10.11 (and, if applicable, Section 10.9). The chairman of the meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 10.11 (and, if applicable, Section 10.9), and, if he or she should so determine, he or she shall so declare at the meeting that any such business not properly brought before the meeting shall not be transacted. SECTION 10.12 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Except as otherwise provided in the Certificate of Incorporation, any action required by the General Corporation Law of the State of Delaware to be taken, or any action which may be taken, at any annual or special meeting of stockholders of the corporation may be taken without a meeting, without prior notice, and without a vote of stockholders, if a consent or consents in writing, setting forth the action so taken, signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted, shall be delivered to the corporation by delivery to its registered office in Delaware, to its principal place of business wherever located, or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Any stockholder giving a written consent, or the stockholder's proxyholders, or a transferee of the shares or a personal representative of the stockholder or their respective proxyholders, may revoke the consent by a writing received by the Secretary of the corporation before written consents of the number of shares required to authorize the proposed action have been filed with the Secretary. If the consents of all stockholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such stockholders shall not have been received, the Secretary shall give prompt notice of the corporate action approved by the stockholders without a meeting. The notice shall be given in the manner specified in Section 10.4 and in this corporation's Certificate of Incorporation. SECTION 10.13 RECORD DATE FOR STOCKHOLDER NOTICE, VOTING AND GIVING CONSENT. (a) For purposes of determining the stockholders entitled to notice of any meeting or to vote, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty (60) days nor less than ten (10) days before the date of any such meeting, and in this event only stockholders of record on the date so fixed are entitled to notice and to vote, as the case may be, notwithstanding any record date, except as otherwise provided in the General Corporation Law of the State of Delaware. (b) For purposes of determining the stockholders entitled to give consent in writing to corporate action without a meeting, the Board of Directors may fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. (c) If the Board of Directors does not so fix a record date: - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 14 138437.3 1. The record date for determining stockholders entitled to notice or to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. 2. The record date for determining stockholders entitled to give consent to corporate action in writing without a meeting, (i) when no prior action by the Board of Directors is required by the General Corporation Law of the State of Delaware, shall be the day on which the first written consent is given, or (ii) when prior action by the Board of Directors is required by the General Corporation Law of the State of Delaware, shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to that action. ARTICLE 11. MEETINGS OF DIRECTORS SECTION 11.1 PLACE OF MEETINGS. Meetings (whether regular, special or adjourned) of the Board of Directors of this corporation shall be held at the principal office of this corporation for the transaction of business, as specified in accordance with Section 1.1 hereof, or at any other place within or without the State of Delaware which has been designated from time to time by resolution of the Board or which is designated in the notice of the meeting. SECTION 11.2 REGULAR MEETINGS. Regular meetings of the Board of Directors shall be held after the adjournment of each annual meeting of the stockholders (which regular directors' meeting shall be designated the "Regular Annual Meeting") and at such other times as may be designated from time to time by resolution of the Board of Directors. Notice of the time and place of all regular meetings shall be given in the same manner as for special meetings, except that no such notice need be given if (a) the time and place of such meetings are fixed by the Board of Directors or (b) the Regular Annual Meeting is held at the principal place of business provided at Section 1.1 hereof and on the date specified in Section 10.2 hereof. SECTION 11.3 SPECIAL MEETINGS. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, if any, or the President, or any Vice President, or the Secretary or by any two or more directors. SECTION 11.4 NOTICE OF SPECIAL MEETINGS. Special meetings of the Board of Directors shall be held upon no less than seven (7) days' notice by mail or seventy-two (72) hours' written notice given or delivered personally or by telegraph or by email or fax to each director. Notice need not be given to any director who signs a waiver of notice or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. Any such notice must set forth with specificity the business proposed to be conducted at the meeting and no other business may be transacted at such meeting unless agreed upon by the vote of five (5) of the directors present at the meeting at which a quorum is present. If the address of a director is not shown on the records and is not readily ascertainable, notice shall be addressed to him at the city or place in which the meetings of the directors are regularly held. If the meeting is adjourned for more than 24 hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to all directors not present at the time of adjournment. Following any adjournment of any meeting of directors, no business may be conducted at such meeting other than the business proposed to be conducted in the notice of such meeting. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 15 138437.3 SECTION 11.5 QUORUM. The presence of five (5) of the seven (7) directors elected by the stockholders and appointed to fill vacancies as provided in Section 2.6 hereof shall constitute a quorum of the Board of Directors for the transaction of business. Except as otherwise provided in these Bylaws, in this corporation's Certificate of Incorporation, in a resolution or resolutions adopted by the Board of Directors with respect to a particular class or series of stock created or authorized by the Board of Directors, or by applicable law, in which case any such provisions will be controlling as to what constitutes the taking of action by the Board of Directors, every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the Board of Directors. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place; provided that no business may be transacted after the adjourned meeting is recommenced unless a quorum is present at such time. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for such meeting. SECTION 11.6 CONFERENCE TELEPHONE. Members of the Board of Directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all directors participating in such meeting can hear one another. Participation in a meeting pursuant to this Section constitutes presence in person at such meeting. SECTION 11.7 WAIVER OF NOTICE AND CONSENT. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present, and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding such meeting or an approval of the minutes thereof. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. SECTION 11.8 ACTION WITHOUT A MEETING. Any action required or permitted by law to be taken by the Board of Directors may be taken without a meeting, if all members of the Board of Directors shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Directors. Such action by written consent shall have the same force and effect as the unanimous vote of such directors. SECTION 11.9 COMMITTEES. The provisions of this Article 11 apply also to committees of the Board of Directors and action by such committees, mutatis mutandis. ARTICLE 12. GENERAL PROVISIONS SECTION 12.1 INSTRUMENTS IN WRITING. All checks, drafts, demands for money and notes of this corporation, and all written contracts of this corporation, shall be signed by such officer or officers, agent or agents, as the Board of Directors may from time to time designate. No officer, agent, or employee of this corporation shall have the power to bind this corporation by contract or otherwise unless authorized to do so by these Bylaws or by the Board of Directors. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 16 138437.3 SECTION 12.2 SHARES HELD BY THE CORPORATION. Shares in other corporations standing in the name of this corporation may be voted or represented and all rights incident thereto may be exercised on behalf of the corporation by any officer of this corporation authorized so to do by resolution of the Board of Directors. SECTION 12.3 CERTIFICATES OF STOCK. There shall be issued to every holder of shares in this corporation a certificate or certificates signed in the name of this corporation by the Chairman of the Board of Directors, if any, or the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or any Assistant Secretary, certifying the number of shares and the class or series of shares owned by the stockholder. Any or all of the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by this corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue. SECTION 12.4 LOST CERTIFICATES. Where the owner of any certificate for shares of this corporation claims that the certificate has been lost, stolen or destroyed, a new certificate shall be issued in place of the original certificate if the owner (a) so requests before this corporation has notice that the original certificate has been acquired by a bona fide purchaser, (b) files with this corporation an indemnity bond in such form and in such amount as shall be approved by the President or a Vice President of this corporation, and (c) satisfies any other reasonable requirements imposed by this corporation. The Board of Directors may adopt such other provisions and restrictions with reference to lost certificates, not inconsistent with applicable law, as it shall in its discretion deem appropriate. SECTION 12.5 CERTIFICATION AND INSPECTION OF BYLAWS. This corporation shall keep at its principal executive or business office the original or a copy of these Bylaws as amended or otherwise altered to date, which shall be open to inspection by the stockholders at all reasonable times during office hours. SECTION 12.6 ANNUAL REPORTS. To the extent permitted by applicable law, the making of annual reports to the stockholders under Section 1501 of the California General Corporation Law is dispensed with and the requirement that such annual reports be made to stockholders is expressly waived, except as may be directed from time to time by the Board of Directors or the President. SECTION 12.7 FISCAL YEAR. The fiscal year of this Corporation shall end on July 31 of each year. SECTION 12.8 OFFICER LOANS AND GUARANTIES. If the corporation has outstanding shares held of record by one hundred (100) or more persons on the date of approval by the Board of Directors, the corporation may make loans of money or property to, or guarantee the obligations of, any officer of the corporation or its parent or subsidiaries, whether or not the officer is a director, upon the approval of the Board of Directors alone. Such approval by the Board of Directors must be determined by a vote of a majority of the disinterested directors, if it is determined that such a loan or guaranty may reasonably be expected to benefit the corporation. In no event may an officer owning two percent (2%) or more of the outstanding common stock of the corporation be extended a loan under this provision. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 17 138437.3 SECTION 12.9 MAJOR EXPENDITURES. No officer, agent or employee shall have any power or authority to make or authorize to be made any expenditures by or on behalf of the Corporation in excess of $100,000 in a single transaction or series of related transactions without prior approval of a majority of the members of the Board of Directors, which majority must include, so long as at least 10,000 shares of Series B Convertible Preferred Stock are outstanding, at least two of the three Directors elected by the holders of Series B Convertible Preferred Stock. SECTION 12.10 INSPECTION RIGHTS OF STOCKHOLDERS. Stockholders of the Corporation shall have those rights of inspection as to corporate records, as are specified in Section 220 of the General Corporation Law of the State of Delaware. ARTICLE 13. CONSTRUCTION OF BYLAWS WITH REFERENCE TO PROVISIONS OF LAW SECTION 13.1 BYLAW PROVISIONS ADDITIONAL AND SUPPLEMENTAL TO PROVISIONS OF LAW. All restrictions, limitations, requirements and other provisions of these Bylaws shall be construed, insofar as possible, as supplemental and additional to all provisions of law applicable to the subject matter thereof and shall be fully complied with in addition to the said provisions of law unless such compliance shall be illegal. SECTION 13.2 BYLAW PROVISIONS CONTRARY TO OR INCONSISTENT WITH PROVISIONS OF LAW. Any article, section, subsection, subdivision, sentence, clause or phrase of these Bylaws which, upon being construed in the manner provided in Section 13.1 hereof, shall be contrary to or inconsistent with any applicable provision of law, shall not apply so long as said provisions of law shall remain in effect, but such result shall not affect the validity or applicability of any other portions of these Bylaws, it being hereby declared that these Bylaws, and each article, section, subsection, subdivision, sentence, clause, or phrase thereof, would have been adopted irrespective of the fact that any one or more articles, sections, subsections, subdivisions, sentences, clauses or phrases is or are illegal. ARTICLE 14. ADOPTION, AMENDMENT OR REPEAL OF BYLAWS SECTION 14.1 BY STOCKHOLDERS. These Bylaws may be adopted, amended or repealed by the vote or written consent of holders of a majority of the outstanding shares entitled to vote. Bylaws specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa may only be adopted by the stockholders; provided, however, that a Bylaw or amendment of the Certificate of Incorporation reducing the number or the minimum number of directors to a number less than five cannot be adopted if the votes cast against its adoption at a meeting or the shares not consenting in the case of action by written consent total more than 16 2/3% of the outstanding shares entitled to vote. SECTION 14.2 BY THE BOARD OF DIRECTORS. Subject to the right of stockholders to adopt, amend or repeal Bylaws and except as provided in Section 14.3, Bylaws, other than a Bylaw or amendment thereof specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa, may be adopted, amended or repealed by the Board of Directors. A Bylaw adopted by the stockholders may restrict or eliminate the power of the Board of Directors to adopt, amend or repeal Bylaws. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 18 138437.3 SECTION 14.3 RESTRICTIONS ON DIRECTOR AMENDMENTS. The Board of Directors may not directly or indirectly amend or repeal in whole or in part Sections 2.2, 6.1 or 12.9 of these Bylaws. ARTICLE 15. RESTRICTIONS ON TRANSFER OF STOCK SECTION 15.1 SUBSEQUENT AGREEMENT OR BYLAW. If (a) any two or more stockholders of this corporation shall enter into any agreement abridging, limiting or restricting the rights of any one or more of them to sell, assign, transfer, mortgage, pledge, hypothecate or transfer on the books of this corporation any or all of the shares of this corporation held by them, and if a copy of said agreement shall be filed with this corporation, or if (b) stockholders entitled to vote shall adopt any Bylaw provision abridging, limiting or restricting the aforesaid rights of any stockholders, then, and in either of such events, all certificates of shares of stock subject to such abridgments, limitations or restrictions shall have a reference thereto endorsed thereon by an officer of this corporation and such certificates shall not thereafter be transferred on the books of this corporation except in accordance with the terms and provisions of such agreement or Bylaw, as the case may be; provided, that no restriction shall be binding with respect to shares issued prior to adoption of the restriction unless the holders of such shares voted in favor of or consented in writing to the restriction. ARTICLE 16. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS SECTION 16.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. The corporation shall, to the maximum extent and in the manner permitted by the General Corporation Law of the State of Delaware, indemnify each of its directors and officers against expenses (including, without limitation, attorneys' fees and any expense of establishing a right to indemnification under this Article 16), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Article 16, a "director" or "officer" of the corporation includes any person (a) who is or was a director or officer of the corporation, (b) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was a director or officer of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation. SECTION 16.2 INDEMNIFICATION OF OTHERS. The corporation shall have the power, to the extent and in the manner permitted by the General Corporation Law of the State of Delaware, to indemnify each of its employees and agents (other than directors and officers) against expenses (including, without limitation, attorneys' fees and any expense of establishing a right to indemnification under this Article 16), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative, arising by reason of the fact that such person is or was an employee or agent of the corporation. For purposes of this Article 16, an "employee" or "agent" of the corporation (other than a director or officer) includes any person (a) who is or was an employee or agent of the corporation, (b) who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was an employee or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 19 138437.3 SECTION 16.3 PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred in defending any civil, criminal, action, or proceeding for which indemnification is required pursuant to Section 16.1 or for which indemnification is permitted pursuant to Section 16.2 following authorization thereof by the Board of Directors, shall be paid by the corporation in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined that the indemnified party is not entitled to be indemnified as authorized in this Article 16. SECTION 16.4 INDEMNITY NOT EXCLUSIVE. The indemnification and advancement of expenses provided by this Article 16 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Corporation's Certificate of Incorporation or any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. SECTION 16.5 INSURANCE INDEMNIFICATION. The corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was an Agent of the corporation against any liability asserted against such person and incurred by such person in any such capacity or arising out of such person's status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of this Article 16. SECTION 16.6 CONFLICTS. No indemnification or advancement of expenses shall be made under this Article 16, except where such indemnification or advancement of expenses is mandated by law or the order, judgment or decree of any court of competent jurisdiction, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Certificate of Incorporation, these Bylaws, a resolution of the stockholders or an agreement in effect at the time of the accrual of the alleged cause of the action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. SECTION 16.7 MODIFICATION. No modification or repeal of this Article 16 shall adversely affect any right of indemnification of a director or officer existing at the time of such modification or repeal with respect to any act or omission occurring prior to or circumstance existing at the time of such repeal or modification. - -------------------------------------------------------------------------------- BYLAWS OF NATIONAL LAMPOON, INC. PAGE 20 138437.3 EX-31 5 natlamp_ex31-1.txt EXHIBIT 31.1 CERTIFICATION BY CEO PURSUANT TO SECTION 302 OF SARBANES-OXLEY CERTIFICATIONS I, James P. Jimirro, President and Chief Executive, certify that: 1. I have reviewed this annual report on Form 10-K/A of National Lampoon, Inc.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial conditions, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report. 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in the Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation; and c) Disclosed in this annual report any change in the registrant's internal control over financial reporting that occurred during the registrant's fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls over financial reporting. Dated: December 18, 2003 /s/ James P. Jimirro ----------------------------------------- James P. Jimirro 12 EX-31 6 natlamp_ex31-2.txt EXHIBIT 31.2 CERTIFICATION BY CFO PURSUANT TO SECTION 302 OF SARBANES-OXLEY CERTIFICATIONS I, James Toll, Chief Financial Officer, certify that: 1. I have reviewed this annual report on Form 10-K/A of National Lampoon, Inc.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial conditions, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report. 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in the Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation; and c) Disclosed in this annual report any change in the registrant's internal control over financial reporting that occurred during the registrant's fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls over financial reporting. Dated: December 18, 2003 /s/ James Toll ----------------------------------------- James Toll 13 EX-32 7 natlamp_ex32.txt EXHIBIT 32 SECTION 906 CERTIFICATIONS In connection with the Amendment to the Annual Report of National Lampoon, Inc and Subsidiaries (the "Company") on Form 10-K/A for the fiscal year ended July 31, 2003 as filed with the Securities and Exchange Commission and to which this Certification is an exhibit (the "Report"), the undersigned hereby certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company for the periods reflected therein. Date: December 18, 2003 /s/ James P. Jimirro --------------------------------------- James P. Jimirro, Chief Executive Officer /s/ James Toll --------------------------------------- James Toll, Chief Financial Officer 14 -----END PRIVACY-ENHANCED MESSAGE-----