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EXHIBIT 3.2(a)
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OPTEL, INC.
AMENDED AND RESTATED BYLAWS
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(Amended and Restated as of _________ ___, 1999)
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TABLE OF CONTENTS
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ARTICLE I OFFICES.........................................................................................1
Section 1. Registered Office.........................................................................1
Section 2. Other Offices.............................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS........................................................................1
Section 1. Place of Meetings.........................................................................1
Section 2. Annual Meetings...........................................................................1
Section 3. Special Meetings..........................................................................3
Section 4. Notice of Meetings........................................................................3
Section 5. Nomination of Directors...................................................................4
Section 6. Quorum; Adjournment.......................................................................6
Section 7. Proxies and Voting........................................................................6
Section 8. Stock List................................................................................7
Section 9. Inspectors of Election....................................................................7
Section 10. Actions by Stockholders..................................................................7
ARTICLE III BOARD OF DIRECTORS..............................................................................9
Section 1. Duties and Powers.........................................................................9
Section 2. Number and Term of Office.................................................................9
Section 3. Vacancies.................................................................................9
Section 4. Meetings.................................................................................10
Section 5. Quorum...................................................................................10
Section 6. Actions of Board Without a Meeting.......................................................10
Section 7. Meetings by Means of Conference
Telephone................................................................................11
Section 8. Committees...............................................................................11
Section 9. Compensation.............................................................................11
Section 10. Interested Directors....................................................................11
ARTICLE IV OFFICERS.......................................................................................12
Section 1. General..................................................................................12
Section 2. Election; Term of Office.................................................................12
Section 3. Chairman of the Board....................................................................13
Section 4. President................................................................................13
Section 5. Vice President...........................................................................13
Section 6. Secretary................................................................................13
Section 7. Assistant Secretaries....................................................................14
Section 8. Treasurer................................................................................14
Section 9. Assistant Treasurers.....................................................................14
Section 10. Other Officers..........................................................................15
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ARTICLE V STOCK..........................................................................................15
Section 1. Form of Certificates.....................................................................15
Section 2. Signatures...............................................................................15
Section 3. Lost Certificates........................................................................15
Section 4. Transfers................................................................................15
Section 5. Record Date..............................................................................16
Section 6. Beneficial Owners........................................................................16
Section 7. Voting Securities Owned by the
Corporation..............................................................................16
ARTICLE VI NOTICES........................................................................................17
Section 1. Notices..................................................................................17
Section 2. Waiver of Notice.........................................................................17
ARTICLE VII GENERAL PROVISIONS.............................................................................17
Section 1. Dividends................................................................................17
Section 2. Disbursements............................................................................17
Section 3. Corporation Seal.........................................................................18
ARTICLE VIII DIRECTORS' LIABILITY AND INDEMNIFICATION.......................................................18
Section 1. Directors' Liability.....................................................................18
Section 2. Right to Indemnification.................................................................18
Section 3. Right of Claimant to Bring Suit..........................................................19
Section 4. Non-Exclusivity of Rights................................................................19
Section 5. Insurance and Trust Fund.................................................................20
Section 6. Indemnification of Employees and Agents
of the Corporation.......................................................................20
Section 7. Amendment................................................................................20
ARTICLE IX AMENDMENTS.....................................................................................21
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BYLAWS
OF
OPTEL, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall
be held on such date and at such time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Any previously scheduled annual meeting of the stockholders may be postponed by
resolution of the Board of Directors upon public announcement made on or prior
to the date previously scheduled for such annual meeting of stockholders.
To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder of the Corporation who was
a stockholder of record at the time of giving of the
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notice provided for in this Section 2, who is entitled to vote at the meeting
and who complied with the notice procedures set forth in this Section 2. For
business to be properly brought before an annual meeting by a stockholder, if
such business is related to the election of directors of the Corporation, the
procedures in Section 5 of this Article II must be complied with. If such
business relates to any other matter, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed to and received at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
stockholder meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than 30 days or delayed by more than 60 days
from such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made. Such stockholder's notice shall set
forth in writing as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the
annual meeting, and any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made; and
(ii) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the proposal is made (A) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (B) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 2. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section 2,
and if he or she should so determine, such chairman shall declare to the
meeting that any such business not properly brought before the meeting shall
not be transacted.
For the purposes of this Section 2 and Sections 3 and 5 of this
Article II, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). In addition
to the provisions of this Section 2, a stockholder
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shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth herein.
Nothing in these Bylaws shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
Section 3. Special Meetings. Special meetings of the stockholders may
be called only by the Board of Directors, the Chairman of the Board or the
President. Any previously scheduled special meeting of the stockholders may be
postponed by resolution of the Board of Directors upon public announcement made
on or prior to the date previously scheduled for such special meeting of the
stockholders.
The purpose or purposes of any special meeting of the stockholders
shall be set forth in the notice of meeting, and, except as otherwise required
by law or by the Certificate of Incorporation, no business shall be transacted
at any special meeting of the stockholders other than the items of business
stated in the notice of meeting. The chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 3, and if he or she should so determine, such chairman shall declare to
the meeting that any such business not properly brought before the meeting
shall not be transacted.
Section 4. Notice of Meetings. Written notice of the place, date, and
time of all meetings of the stockholders shall be given not less than ten (10)
nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or as required from time to time by the Delaware General
Corporation Law or the Certificate of Incorporation. If mailed, such notice
shall be directed to each stockholder at his or her address as it appears on
the stock book unless he or she shall have filed with the Secretary of the
Corporation a written request that notices intended for him or her be mailed to
some other address, in which case it shall be mailed or transmitted to the
address designated in such request. Such further notice shall be given as may
be required by law. Except as otherwise expressly provided by statute, no
notice of a meeting of stockholders shall be required to be given to any
stockholder who shall attend such meeting in person or by proxy, or who shall,
in person or by attorney thereunto authorized, waive such notice in writing or
by telegraph, telecopy, cable, radio or wireless either before or after such
meeting. Except where otherwise required by law, notice of any adjourned
meeting of the stockholders of the Corporation shall not be required to be
given.
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Section 5. Nomination of Directors. (a) Only persons who are nominated
in accordance with the procedures set forth in this Section 5 shall be eligible
for election as directors of the Corporation. Nominations of persons for
election to the Board of Directors of the Corporation may be made at any annual
meeting of stockholders by or at the direction of the Board of Directors or by
any stockholder of the Corporation entitled to vote for the election of
directors at the meeting who was a stockholder of record at the time of giving
of the notice provided for in this Section 5 and who complies with the notice
procedures set forth in this Section 5. Any such nomination by a stockholder
shall be made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely notice for an annual meeting, a stockholder's notice
shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not less than 60 days nor more than 90
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the 90th day prior to such annual meeting and not later than
the close of business on the later of the 60th day prior to such annual meeting
or the 10th day following the day on which public announcement (as defined in
Section 2 of this Article II) of the date of such meeting is first made.
Notwithstanding anything in the foregoing sentence to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation is increased and there is no public announcement naming all of
the nominees for director or specifying the size of the increased Board of
Directors made by the Corporation at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 5 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary of the Corporation at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation. Such stockholder's notice shall set forth in writing (i) as to
each person whom the stockholder proposes to nominate for election or
re-election as a director (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the number of shares of stock of the Corporation which are
beneficially owned by such person and (D) any other information relating to
such person that is required to be disclosed in connection with the
solicitation of proxies for election of directors, or as otherwise required, in
each case pursuant to Regulation 14A under the Exchange Act (including, without
limitation, such person's written consent to
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being named in a proxy statement as a nominee and to serving as a director if
elected); and (ii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination is made (A) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (B) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(b) Nominations of persons for election to the Board of Directors of
the Corporation may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (i)
by or at the direction of the Board of Directors or (ii) provided that the
Board of Directors has determined that directors shall be elected at such
special meeting, by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 5, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 5. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person
or persons (as the case may be) for election to such position(s) as specified
in the Corporation's notice of meeting, if the stockholder's notice shall be
delivered to the Secretary of the Corporation at the principal executive
offices of the Corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the
Secretary of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 5. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws and in that event the defective nomination shall be
disregarded. In addition to the provisions of this Section 5, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth herein.
Section 6. Quorum; Adjournment. At any meeting of the stockholders,
the holders of a majority of all of the shares of
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the stock entitled to vote at the meeting, present in person or by proxy, shall
constitute a quorum for all purposes, unless or except to the extent that the
presence of a larger number may be required by law or the Certificate of
Incorporation. If a quorum shall fail to attend any meeting, the chairman of
the meeting or the holders of a majority of the shares of stock entitled to
vote who are present, in person or by proxy, may adjourn the meeting to another
place, date, or time without notice other than announcement at the meeting,
until a quorum shall be present or represented.
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally noticed,
or if a new record date is fixed for the adjourned meeting, written notice of
the place, date, and time of the adjourned meeting shall be given in conformity
herewith. At any adjourned meeting, any business may be transacted which might
have been transacted at the original meeting.
Section 7. Proxies and Voting. At any meeting of the stockholders,
every stockholder entitled to vote may vote in person or by proxy authorized by
an instrument in writing filed in accordance with the procedure established for
the meeting, provided, however, that no proxy shall be valid after three years
from its date unless said proxy provides for a longer period.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law or the
Certificate of Incorporation.
Except as otherwise required by statute, by the Certificate of
Incorporation or these Bylaws, or in electing directors, all matters coming
before any meeting of the stockholders shall be decided by the vote of a
majority of the votes of the stockholders of the Corporation present in person
or by proxy at such meeting and entitled to vote thereat, a quorum being
present. At all elections of directors, the voting may but need not be by
ballot and a plurality of the votes cast thereat shall elect.
Section 8. Stock List. A complete list of stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in such stockholder's name, shall be open to the
examination of any such stockholder, for any purpose germane to
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the meeting, during ordinary business hours for a period of at least ten (10)
days prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or
if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
Section 9. Inspectors of Election. The Corporation shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of stockholders, the
chairman of such meeting shall appoint one or more inspectors to act at such
meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his or her
ability. The inspectors shall make a certificate of the result of the vote
taken after the balloting and shall have such other duties as are prescribed by
law. No director or candidate for the office of director shall be appointed as
such inspector. The chairman of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at the meeting.
Section 10. Actions by Stockholders. (a) Unless otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. 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.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
earliest dated consent
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delivered to the Corporation, written consents signed by a sufficient number of
holders to take action are delivered to the Corporation.
(c) The record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be fixed by the Board of
Directors. Any stockholder seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the President, request the Board of Directors to fix a record date. Upon
receipt of such a request, the President shall, as promptly as practicable,
call a special meeting of the Board of Directors to be held as promptly as
practicable, but in any event not more than 10 days following the date of
receipt of such a request. At such a meeting, the Board of Directors shall 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 record date shall not be more than 10 days after the date that the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been so fixed by Board of Directors, the record date for
determining the stockholders entitled to consent to corporate action in writing
without a meeting, where no prior action by the Board of Directors is required
by the Delaware General Corporation 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 Corporation. If no date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the
Delaware General Corporation 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 day on which the Board of Directors adopts the
resolution taking such prior action.
(d) In the event of the delivery to the Corporation of a written
consent or consents purporting to represent the requisite voting power to
authorize or take corporate action and/or related revocations, the Secretary of
the Corporation shall provide for the safekeeping of such consents and
revocations and shall, as promptly as practicable, engage inspectors for the
purpose of promptly performing a ministerial review of the validity of the
consents and revocations. No action by written consent without a meeting shall
be effective until such inspectors have completed their review, determined that
the requisite number of valid and unrevoked consents has been obtained to
authorize or take the actions specified in the consents and certified such
determination for entry in the records of the Corporation for the purpose of
recording the proceedings of meetings of the stockholders.
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(e) For the purposes of this Section 10, delivery to the Corporation
shall be effected by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by law or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
Section 2. Number and Term of Office. The Board of Directors shall
consist of one (1) or more members. The number of directors shall be fixed and
may be changed from time to time by resolution duly adopted by the Board of
Directors, except as otherwise provided by law or the Certificate of
Incorporation. Except as provided in Section 3 of this Article, directors shall
be elected by the holders of record of a plurality of the votes cast at Annual
Meetings of Stockholders, and each director so elected shall hold office until
the next Annual Meeting and until his or her successor is duly elected and
qualified, or until his or her earlier resignation or removal. Any director may
resign at any time upon written notice to the Corporation. Directors need not
be stockholders.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director or by the stockholders entitled to vote at any
Annual or Special Meeting held in accordance with Article II, and the directors
so chosen shall hold office until the next Annual or Special Meeting duly
called for that purpose and until their successors are duly elected and
qualified, or until their earlier resignation or removal.
Section 4. Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware. The first meeting of each newly-elected Board of Directors shall be
held immediately following the Annual Meeting of Stockholders and no notice of
such meeting shall be necessary to be given the newly-elected
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directors in order legally to constitute the meeting, provided a quorum shall
be present. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be determined by
the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the President or a majority of the
directors then in office. Notice thereof stating the place, date and hour of
the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, facsimile
or telegram on twenty-four (24) hours' notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the
circumstances. Meetings may be held at any time without notice if all the
directors are present or if all those not present waive such notice in
accordance with Section 2 of Article VI of these Bylaws.
Section 5. Quorum. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these Bylaws, at all meetings of the
Board of Directors, a majority of the directors then in office shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board Without a Meeting. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting if all members of the
Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution
passed by a majority of the directors then in office,
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designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any committee, to the extent allowed by law and provided in the Bylaw
or resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Each committee
shall keep regular minutes and report to the Board of Directors when required.
Section 9. Compensation. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
Section 10. Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or any other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his, her or
their votes are counted for such purpose if (i) the material facts as to his,
her or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or their committee, and the
Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his, her or their
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relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be appointed
by the Board of Directors and shall consist of a Chairman of the Board (who
must be a director) or a President, or both, a Secretary and a Treasurer (or a
position with the duties and responsibilities of a Treasurer). The Board of
Directors may also appoint one or more vice presidents, assistant secretaries
or assistant treasurers, and such other officers as the Board of Directors, in
its discretion, shall deem necessary or appropriate from time to time. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide.
Section 2. Election; Term of Office. The Board of Directors at its
first meeting held after each Annual Meeting of Stockholders shall elect a
Chairman of the Board or a President, or both, a Secretary and a Treasurer (or
a position with the duties and responsibilities of a Treasurer), and may also
elect at that meeting or any other meeting, such other officers and agents as
it shall deem necessary or appropriate. Each officer of the Corporation shall
exercise such powers and perform such duties as shall be determined from time
to time by the Board of Directors together with the powers and duties
customarily exercised by such officer; and each officer of the Corporation
shall hold office until such officer's successor is elected and qualified or
until such officer's earlier resignation or removal. Any officer may resign at
any time upon written notice to the Corporation. The Board of Directors may at
any time, with or without cause, by the affirmative vote of a majority of
directors then in office, remove any officer. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors. The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
Section 3. Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall preside at all meetings of the stockholders and
the Board of Directors and shall
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have such other duties and powers as may be prescribed by the Board of
Directors from time to time.
Section 4. President. The President shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
shall have and exercise such further powers and duties as may be specifically
delegated to or vested in the President from time to time by these Bylaws or
the Board of Directors. In the absence of the Chairman of the Board or in the
event of his or her inability or refusal to act, or if the Board has not
designated a Chairman, the President shall perform the duties of the Chairman
of the Board, and when so acting, shall have all of the powers and be subject
to all of the restrictions upon the Chairman of the Board.
Section 5. Vice President. At the request of the President, in the
absence of the President or in the event of his or her inability or refusal to
act, the Vice President (or in the event there be more than one vice president,
the vice presidents in the order designated by the directors, or in the absence
of any designation, then in the order of their election) shall perform the
duties of the President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President. The vice presidents
shall perform such other duties and have such other powers as the Board of
Directors or the President may from time to time prescribe.
Section 6. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors or the President. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary,
then either the Board of Directors or the President may choose another officer
to cause such notice to be given. The Secretary shall have custody of the seal
of the Corporation and the Secretary or any Assistant Secretary, if there be
one, shall have authority to affix the same to any instrument requiring it and
when so affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his or her signature. The Secretary shall see that
all books, reports, statements, certificates and other documents
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and records required by law to be kept or filed are properly kept or filed, as
the case may be.
Section 7. Assistant Secretaries. Except as may be otherwise provided
in these Bylaws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, or the Secretary, and shall have the
authority to perform all functions of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 8. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, shall keep complete and accurate accounts of
all receipts and disbursements of the Corporation, and shall deposit all monies
and other valuable effects of the Corporation in its name and to its credit in
such banks and other depositories as may be designated from time to time by the
Board of Directors. The Treasurer shall disburse the funds of the Corporation,
taking proper vouchers and receipts for such disbursements, and shall render to
the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation. The Treasurer shall, when and if
required by the Board of Directors, give and file with the Corporation a bond,
in such form and amount and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of his or
her duties as Treasurer. The Treasurer shall have such other powers and perform
such other duties as the Board of Directors or the President shall from time to
time prescribe.
Section 9. Assistant Treasurers. Except as may be otherwise provided
in these Bylaws, Assistant Treasurers, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, or the Treasurer, and shall have the
authority to perform all functions of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
Treasurer. The Assistant Treasurers shall, when and if required by the Board of
Directors, give and file with the Corporation a bond, in such form and amount
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of his or her performance as Assistant
Treasurer.
Section 10. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any
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other officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board or the President or a Vice
President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of shares
owned by such holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by a
transfer agent other than the Corporation or its employees or a registrar other
than the Corporation or its employees, any other signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such owner's legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws. Transfers of stock shall
be made on the books of the Corporation only by the person named in the
certificate or by such person's attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, which shall be canceled before
a new certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at
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any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than
sixty (60) days nor less than ten (10) days before the date of such meeting,
nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
Section 7. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chairman of the Board, the President,
any Vice President or the Secretary and any such officer may, in the name of
and on behalf of the Corporation, take all such action as any such officer may
deem advisable to vote in person or by proxy at any meeting of security holders
of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power incident to
the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail.
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Written notice may also be given personally or by telegram, telex, facsimile or
cable and such notice shall be deemed to be given at the time of receipt
thereof if given personally or at the time of transmission thereof if given by
telegram, telex, facsimile or cable.
Section 2. Waiver of Notice. Whenever any notice is required by law,
the Certificate of Incorporation or these Bylaws to be given to any director,
member or a committee or stockholder, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting or by any Committee of the Board of Directors having such authority at
any meeting thereof, and may be paid in cash, in property, in shares of the
capital stock or in any combination thereof. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All notes, checks, drafts and orders for the
payment of money issued by the Corporation shall be signed in the name of the
Corporation by such officers or such other persons as the Board of Directors
may from time to time designate.
Section 3. Corporation Seal. The corporate seal, if the Corporation
shall have a corporate seal, shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
DIRECTORS' LIABILITY AND INDEMNIFICATION
Section 1. Directors' Liability. No director of the Corporation shall
be personally liable to the Corporation or its
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stockholders for monetary damages for any breach of fiduciary duty by such a
director as a director. Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (i) for any breach of
the director's duty of loyalty to the 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) pursuant to Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from
which such director derived an improper personal benefit. No amendment to or
repeal of this Article shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
If the Delaware General Corporation Law is amended hereafter to further
eliminate or limit the personal liability of directors, the liability of a
director of this Corporation shall be limited or eliminated to the fullest
extent permitted by the Delaware General Corporation Law, as amended.
Section 2. Right to Indemnification. Each person who was or is made a
party to or is threatened to be made a party to or is involuntarily involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she is or was
a director or officer of the Corporation, or is or was serving (during his or
her tenure as director and/or officer) at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, whether the basis of
such Proceeding is an alleged action or inaction in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law (or other
applicable law), as the same exists or may hereafter be amended, against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection with such
Proceeding. Such director or officer shall have the right to be paid by the
Corporation for expenses incurred in defending any such Proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law (or other applicable law) requires, the payment of such
expenses in advance of the final disposition of any such Proceeding shall be
made only upon receipt by the Corporation of an undertaking by or on behalf of
such director or officer to repay all amounts so advanced if it should be
determined ultimately that he or she is not entitled to be indemnified under
this Article or otherwise.
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Section 3. Right of Claimant to Bring Suit. If a claim under Section 2
of this Article is not paid in full by the Corporation within ninety (90) days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim, together with interest thereon, and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expense of
prosecuting such claim, including reasonable attorneys' fees incurred in
connection therewith. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law (or other applicable law) for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation (or
of its full Board of Directors, its directors who are not parties to the
Proceeding with respect to which indemnification is claimed, its stockholders,
or independent legal counsel) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law (or other applicable law),
nor an actual determination by any such person or persons that such claimant
has not met such applicable standard of conduct, shall be a defense to such
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 4. Non-Exclusivity of Rights. The rights conferred by this
Article shall not be exclusive of any other right which any director, officer,
representative, employee or other agent may have or hereafter acquire under the
Delaware General Corporation Law or any other statute, or any provision
contained in the Corporation's Certificate of Incorporation or Bylaws, or any
agreement, or pursuant to a vote of stockholders or disinterested directors, or
otherwise.
Section 5. Insurance and Trust Fund. In furtherance and not in
limitation of the powers conferred by statute:
(1) the Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of
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his or her status as such, whether or not the Corporation would have the power
to indemnify him against such liability under the provisions of law; and
(2) the Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of
credit, surety bonds and/or other similar arrangements), as well as enter into
contracts providing indemnification to the fullest extent permitted by law and
including as part thereof provisions with respect to any or all of the
foregoing, to ensure the payment of such amount as may become necessary to
effect indemnification as provided therein, or elsewhere.
Section 6. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, including the right to be paid by
the Corporation the expenses incurred in defending any Proceeding in advance of
its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article VIII or otherwise with respect
to the indemnification and advancement of expenses of directors and officers of
the Corporation.
Section 7. Amendment. This Article VIII is also contained in Articles
SEVEN and EIGHT of the Corporation's Certificate of Incorporation, and
accordingly, may be altered, amended or repealed only to the extent and at the
time the comparable Certificate Article is altered, amended or repealed. Any
repeal or modification of this Article VIII shall not change the rights of an
officer or director to indemnification with respect to any action or omission
occurring prior to such repeal or modification.
ARTICLE IX
AMENDMENTS
Except as otherwise specifically stated within an Article to be
altered, amended or repealed, these Bylaws may be altered, amended or repealed
and new Bylaws may be adopted at any meeting of the Board of Directors or of
the stockholders, provided that with respect to a meeting of the stockholders,
notice of the proposed change was given in the notice of such stockholders'
meeting.
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THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of OpTel,
Inc. and that the foregoing amended and restated bylaws were adopted as the
bylaws of said corporation effective as of the ___ day of ________, 1999, at a
meeting of the Board of Directors duly held on __________ ___, 1999 by the vote
of the directors entitled to exercise at least a majority of the voting power
of said corporation.
Dated as of _________ ___, 1999.
---------------------------------
Michael E. Katzenstein, Secretary
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