Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
GLOBIX CORPORATION
(EFFECTIVE April 23, 2002)
ARTICLE I
General.
Section 1.01 Interpretation; Governing Instruments. Terms used and not
defined in these bylaws (these "Bylaws"), shall have the meanings set forth in,
and shall be interpreted in accordance with, the Delaware General Corporation
Law ("DGCL") and other applicable statutes and the certificate of incorporation
(the "Certificate of Incorporation" and collectively with the DGCL, the
"governing instruments") of Globix Corporation (the "Company"), as from time to
time in effect. Whether or not so stated, these Bylaws are subject to such
governing instruments, and in the event of any conflict or inconsistency the
provisions of the governing instruments shall control.
Section 1.02 Registered Office. The address of the Company's
registered office in the State of Delaware is c/o United Corporate Services,
Inc., 15 East North Street, in the City of Dover, County of Kent, State of
Delaware 19901 and the name of the registered agent at said address is United
Corporate Services, Inc.
Section 1.03 Other Offices; Business Activities. The Company may have
such other offices and conduct its business activities at such other locations
within or without the State of Delaware, as the board of directors (the "Board")
determines.
ARTICLE II
Stockholders.
Section 2.01 Annual Meeting. The annual stockholders meeting for the
election of directors and the transaction of other business shall be held
annually during the fifth full month following the end of the Company's fiscal
year on such date and time as the Board may fix.
Section 2.02 Special Meeting. Special stockholders meetings may be
called by the Board or the chairman and shall be called by the chairman, the
chief executive officer, the president, the executive vice president, any vice
president or the secretary upon written request, stating the purpose(s) of the
meeting. Only such business may be transacted at a special meeting as relates to
the purpose(s) set forth in the notice of meeting.
Section 2.03 Place of Meeting. Stockholders meetings shall be held at
such place, within or without the State of Delaware, as may be fixed by the
Board or, if not so fixed, at the registered office of the Company in the State
of Delaware. Attendance at any meeting in person or by
proxy shall constitute a waiver of notice, except when the person or proxy
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
Section 2.04 Notice of Meetings; Waiver. Written notice of each
stockholders meeting shall be given, personally or by mail, not less than ten
nor more than sixty days before the meeting date to each stockholder entitled to
vote at the meeting at his address appearing on the record of stockholders or,
if he shall have filed with the secretary a written request that notices be
mailed to some other address, at such other address. Each notice shall state the
place, date and time of the meeting and, unless an annual meeting, shall
indicate that it is being issued by or at the direction of the person(s) calling
the meeting. Notice of a special meeting shall also state the purpose(s) for
which called. Notice of an adjourned meeting shall be unnecessary unless
otherwise required by the governing instruments.
Section 2.05 Quorum. Subject to the governing instruments, the holders
of one-third of the shares entitled to vote shall constitute a quorum for the
transaction of any business. When a specified item of business must be voted on
by a class or series, voting as a class, however, the holders of a majority of
the shares of such class or series shall constitute a quorum. Despite the
absence of a quorum the stockholders present may by majority vote adjourn a
meeting without further notice unless otherwise required by the governing
instruments.
Section 2.06 Voting; Proxies. Subject to the governing instruments:
(a) Stockholders of record shall be entitled to one vote for each
share held. Any corporate action other than the election of directors (as to
which see Section 3.01 of these Bylaws) shall be authorized by a majority of the
votes cast by holders entitled to vote.
(b) Any stockholder may vote in person or by proxy signed by him
or his attorney-in-fact. No proxy shall be valid after the expiration of eleven
months from its date unless it otherwise provides.
Section 2.07 Action Without Meeting. Subject to the governing
instruments, any stockholder action may be taken without a meeting if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding shares necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
Section 2.08 Nature of Business at Meetings of Stockholders.
(a) No business may be transacted at an annual meeting of
stockholders, other than business that is either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (ii) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (iii) otherwise properly
brought before the annual meeting by any stockholder of the Company (A) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 2.08 and on the record date for the determination of
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stockholders entitled to vote at such annual meeting and (B) who complies with
the notice procedures set forth in this Section 2.08.
(b) In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Company.
(c) To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company not less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual 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 record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the Company
which are owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
(e) No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 2.08; provided, however, that,
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once business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 2.08 shall be deemed to preclude
discussion by any stockholder of any such business. If the Chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
ARTICLE III
Directors.
Section 3.01 Authority; Number; Election; Qualification; Term. Subject
to the governing instruments, the Company's business shall be managed under the
direction of the Board which shall consist of seven (7) directors, or such other
number, not less than two directors, as may be fixed from time to time by a
majority vote of the shareholders or by a majority of the Board,
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provided that no decrease in the number of directors shall decrease the term of
any incumbent director. The directors shall be elected at each annual
stockholders meeting, shall be at least eighteen (18) years old, but need not be
stockholders, and shall hold office until the next annual stockholders meeting
and the election and qualification of their respective successors. Election of
directors need not be by ballot.
Section 3.02 Annual, Regular and Special Meetings; Place. The annual
Board meeting for the election of officers and the transaction of other business
shall be held without notice immediately following and at the same place as the
annual stockholders meeting or, if a quorum is not present or the Board
otherwise determines, as promptly as practicable thereafter. Regular Board
meetings for the transaction of all business may be held without notice at such
times and places as the Board determines. Special Board meetings may be called
by the chairman of the Board, the chief executive officer or a majority of the
directors. Except as provided above, Board meetings shall be held at such place,
within or without the State of Delaware, as the Board determines or, if not so
determined, at the principal office of the Company.
Section 3.03 Notice of Meetings; Waiver, Adjournment. Notice of the
time and place of each deferred annual and of each special Board meeting shall
be given the directors by mail not less than three, or personally or by
telephone, telegram or telegraph not less than one, day prior to the meeting.
Notice of any meeting need not specify its purpose(s). Notice need not be given
to any director who submits a signed waiver of notice before, at or after the
meeting or who attends the meeting without protesting, prior to or at its
commencement, lack of notice to him.
Whether or not a quorum is present, a majority of the directors
present may adjourn any meeting without notice to directors not present unless
the meeting is adjourned for more than 48 hours.
Section 3.04 Quorum; Actions by Board. Subject to the governing
instruments:
(a) Except as otherwise provided in the DGCL, the Certificate of
Incorporation or these Bylaws, a majority of the entire Board shall constitute a
quorum for the transaction of business and the vote of a majority of the
directors present at the taking of the vote, if a quorum is then present, shall
be the act of the Board. Directors may either be present or vote by proxy.
(b) Any action by the Board or any committee may be taken without
a meeting if all directors or committee members consent in writing to the
adoption of a resolution authorizing the action. The resolution and consent
shall be filed with the Board or committee minutes.
(c) Any one or more directors or committee members may
participate in a Board or committee meeting by means of a conference telephone
or other communications equipment allowing all persons participating to hear
each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 3.05 Resignation; Removal; Vacancies. Subject to the governing
instruments:
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(a) A director may resign at any time. Any or all directors may
be removed at any time for or without cause by stockholder vote and for cause by
the Board.
(b) Board vacancies occurring for any reason, including vacancies
resulting from an increase in the number of directors, but excluding vacancies
resulting from the removal of directors without cause may be filled by Board
vote or, if the number of directors then in office is less than a quorum, by
vote of a majority of the directors then in office. Vacancies occurring for any
reason may also be filled by stockholders.
Section 3.06 Compensation. Directors shall receive such compensation
as the Board determines to be appropriate, and shall be reimbursed for
reasonable expenses incurred in the performance of, their services to the
Company as directors and in other capacities.
Section 3.07 Committees. The Board, by resolution adopted by a
majority of the entire Board, may designate an executive committee and any other
committee it deems necessary or desirable to designate, each committee
consisting of at least one director. Any committee designated by the Board shall
serve solely at the discretion of the Board. The Board may adopt qualification
criteria, such as financial expertise or independence, as requirements for
membership on certain committees. The Board, but not any committee, may fill
committee vacancies and may designate alternative qualified committee members to
replace absent members at any committee meetings. The executive committee has
the power and authority to act in place of the Board in all matters except
amendment to the Certificate of Incorporation and except as restricted by the
DGCL and the action of the Board. Other committees shall have such authority as
the Board determines. The provisions of Sections 3.02, 3.03 and 3.04 of these
Bylaws relating to the holding of meetings, notice, waiver, adjournment, quorum
and Board action shall apply to committees unless the Board otherwise
determines. The Board may adopt additional rules of procedure for any committee
not inconsistent with these Bylaws or may delegate this authority to any
committee.
Section 3.08 Indemnification. The Company shall indemnify its officers
and directors under certain circumstances, including those circumstances in
which indemnification would otherwise be discretionary, and the Company is
required to advance expenses to its officers and directors as incurred in
connection with proceedings against them for which they may be indemnified.
Section 3.09 Nomination of Directors.
(a) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the Company,
except as may be otherwise provided in the Certificate of Incorporation with
respect to the right of holders of preferred stock of the Company to nominate
and elect a specified number of directors in certain circumstances. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors, (i) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (ii) by any stockholder
of the Company (A) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 3.09 and on the record date for the
determination of stockholders entitled to vote at such meeting and (B) who
complies with the notice procedures set forth in this Section 3.09.
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(b) In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Company.
(c) To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company (i) not less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
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meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs; and (ii) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class or series and number of shares of capital stock of the
Company which are owned beneficially or of record by the person and (D) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (ii) as to the stockholder giving
the notice (A) the name and record address of such stockholder, (B) the class or
series and number of shares of capital stock of the Company which are owned
beneficially or of record by such stockholder, (C) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (D) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (E) any other information relating
to such stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. Such notice must be accompanied by
a written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
(e) No person shall be eligible for election as a director of the
Company unless nominated in accordance with the procedures set forth in this
Section 3.09. If the Chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
ARTICLE IV
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Executive and Other Officers.
Section 4.01 Positions; Election; Term; Removal. The executive
officers of the Company may include any one or more of the following: the
chairman of the Board, a chief executive officer, the president, one or more
executive vice presidents, one or more senior vice presidents, (each such
executive or senior vice president with such designations and rankings as the
Board may fix), the secretary, one or more assistant secretaries, the treasurer
and one or more assistant treasurers, each of whom shall be elected or appointed
annually by the Board. Officers other than the chairman need not be directors.
Any two or more offices may be held by the same person except the offices of
president and secretary. Officers shall serve at the Board's discretion until
the next annual Board meeting and the election of their respective successors.
The Board may at any time remove any officer with or without cause and may fill
any vacancies among the officers however occurring.
Section 4.02 Chief Executive Officer, Additional Powers and Duties of
Officers.
(a) Subject to the Board's overall authority, the chief executive
officer shall have general control and supervision of the Company's business and
affairs and such other powers and duties consistent with these Bylaws as are
customarily possessed by corporate chief executive officers and as the Board
assigns.
(b) Subject to the Board's overall authority, each officer shall
have such powers and duties in addition to those specifically provided in these
Bylaws as are customarily possessed by like corporate officers holding the same
position and as the Board or chief executive officer assigns. Such officers may,
at the direction of the Board and/or the chief executive officer or in
accordance with general delegations of authority or the respective resolutions
of the Board, execute in the Company's name all authorized deeds, mortgages,
bonds, contracts or other instruments requiring a seal, under the seal of the
Company, except in cases in which the signing or execution thereof shall be
expressly delegated by the Board to some other officer or agent of the Company.
Section 4.03 Chairman of the Board. The chairman shall preside at all
Board and stockholder meetings.
Section 4.04 Chief Executive Officer. The chief executive officer
shall be the Company's chief executive officer. He shall have general and active
management of the business of the Company and shall see that all orders and
resolutions of the Board are carried into effect.
Section 4.05 President. Subject to the direction of the chief
executive officer, the president shall have such authority as may be delegated
by the chief executive officer and/or the Board. Unless and until the Board
otherwise determines, in the event of the absence or inability to act of the
chief executive officer, or if there be no chief executive officer, the
president shall have the powers and duties of the chief executive officer.
Section 4.06 Executive and Senior Vice Presidents. Each executive vice
president and senior vice president shall have such further title and such
powers and duties as the Board and/or the chief executive officer, if so
authorized by the Board, assigns. Unless and until the Board otherwise
determines, in the event of the absence or inability to act of the president, or
if there be no president, the ranking executive vice president or senior vice
president shall have the powers
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and duties of the president.
Section 4.07 Vice Presidents and other Subordinate Officers. The Board
may also appoint, or may delegate to any executive officer the appointment of,
one or more vice presidents and other subordinate and assistant officers with
such titles and duties as the Board or such executive officer may determine.
Such vice presidents and other subordinate and assistant officers shall not be
executive officers unless so designated by the Board.
Section 4.08 Secretary and Assistant Secretary. The secretary shall
give all meeting and other required corporate notices except as otherwise
provided in these Bylaws; shall attend and keep minutes of all Board and
stockholder proceedings; shall have charge of and maintain the corporate stock
books and records (unless the Company has a transfer agent or registrar) and
such other corporate records as the Board directs; and shall keep the corporate
seal and, when duly authorized, shall affix such seal to all necessary corporate
instruments. The assistant secretary shall, in the absence or inability to act
of the secretary, or if there be no secretary, have the powers and duties of the
secretary.
Section 4.09 Treasurer and Assistant Treasurer. Unless another officer
or employee is so designated by the Board, the treasurer shall be the Company's
chief financial officer, and, its chief accounting officer and shall have
custody of its funds and securities and shall maintain its financial books and
records. The treasurer (or such other designated officer or employee) shall
disburse the funds of the Company as may be ordered by the Board, taking proper
vouchers for such disbursements, and shall render to the chairman, the chief
executive officer, the president and the Board, at its regular meetings, or when
the Board so directs, an account of all his transactions as treasurer and of the
financial condition of the Company.
Section 4.10 Compensation. The Board shall fix the compensation, if
any, of all officers who are directors and may fix, or delegate to the chief
executive officer authority to fix, the compensation of other officers.
ARTICLE V
Shares and Transfer.
Section 5.01 Certificates. Shares of the Company shall be represented
by certificates in such form consistent with the governing instruments as the
Board approves, shall be signed by the chairman, president or any vice president
and the secretary or treasurer, or any assistant secretary or assistant
treasurer, and shall be sealed with the corporate seal or its facsimile.
Officers' signatures may be facsimiles if the certificate is signed by a
transfer agent or registered by a registrar other than the Company or its
employee. Certificates may be used although the officer who has signed, or whose
facsimile signature has been used, is no longer such officer. If the Company is
authorized to issue shares of more than one class, certificates shall contain
the statements required by statute.
Section 5.02 Transfer Agents; Registrars. The Board may appoint one or
more transfer agents and/or registrars, the duties of which may be combined and
prescribe their duties.
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Section 5.03 Transfers; Lost Certificates. Subject to the governing
instruments and compliance with such additional requirements as the Board may
establish:
(a) Shares shall be transferable only on the Company's books by
the holders or their duly authorized attorneys or legal representatives upon
surrender of certificates properly endorsed.
(b) Replacements for certificates alleged to have been lost or
destroyed may be issued upon delivery of such proof of loss and/or bond with or
without surety, or other security, sufficient to indemnify the Company as the
Board determines.
Section 5.04 Record Date.
(a) The Board may fix in advance a record date for the
determination of stockholders entitled to notice of or to vote at any
stockholders meeting, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining stockholders entitled to
receive any dividend, distribution or allotment of rights, or for the purpose of
any other action. The record date shall not be more than sixty nor less than ten
days prior to the meeting date nor more than sixty days prior to any other
action.
(b) In order that the Company may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date 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. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten (10) days after the date
on which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the Board of Directors within ten (10) days
of the date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Company by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Company having
custody of the book in which proceedings of stockholders meetings are recorded,
to the attention of the Secretary of the Company. Delivery shall be by hand or
by certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
ARTICLE VI
Miscellaneous.
Section 6.01 Seal. The corporate seal shall be in such form as the
Board may
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approve.
Section 6.02 Fiscal Year. The Board may establish and change the
Company's fiscal year. Until the Board acts, the fiscal year shall end on
September 30 in each year.
Section 6.03 Shares in Other Companies. Shares in other corporations
held by the Company may be represented and voted by the chief executive officer
or any person designated by him unless the Board otherwise directs.
Section 6.04 Bylaws Amendments; Stockholder Agreements. Subject to the
governing instruments:
(a) Bylaws may be adopted, amended or repealed either by the
stockholders at the time entitled to vote in the election of directors or by the
Board (provided that any change by the Board in the number of directors requires
the vote of a majority of the members Board). Any Bylaw adopted by the Board may
be amended or repealed by the stockholders entitled to vote thereon. If the
Board adopts, amends or repeals any Bylaw regulating an impending election of
directors, the notice of the next stockholders meeting for the election of
directors shall set forth such Bylaw and a concise statement of the changes
made.
(b) Any written agreement among all of the stockholders of the
Company holding votes sufficient to modify, amend or repeal any Bylaw, whether
expressly or by interpretation or implication and whether or not the Company is
a party thereto, shall be given full force and effect in accordance with its
terms as a stockholders amendment under subsection 6.04(a) above provided a copy
of such written agreement is delivered to the Company and that prompt notice of
any such modification, amendment or repeal effected by any such written
agreement to which fewer than all the stockholders of the Company are party is
given to those stockholders who are not party thereto.
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