Exhibit 3.2
Amended and Restated Bylaws
of
Pathnet, Inc.
A Delaware Corporation
________________________
ARTICLE 1
DEFINITIONS
As used in these Bylaws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "Business Day" means any day which is not a Saturday, a Sunday,
or a day on which banks are authorized to close in the City of New York.
1.5 "Bylaws" means the bylaws of the Corporation, as amended from
time to time.
1.6 "Certificate of Incorporation" means the certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.7 "Chairman" means the Chairman of the Board of the Corporation.
1.8 "Chief Executive Officer" means the Chief Executive Officer of
the Corporation.
1.9 "Corporation" means Pathnet, Inc.
1.10 "Directors" means directors of the Corporation.
1.11 "Entire Board" means all Directors of the Corporation in office,
whether or not present at a meeting of the Board, but disregarding vacancies.
1.12 "Executive Vice President" means an Executive Vice President of
the Corporation.
1.13 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.14 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.15 "President" means the President of the Corporation.
1.16 "Secretary" means the Secretary of the Corporation.
1.17 "Stockholders" means stockholders of the Corporation.
1.18 "Treasurer" means the Treasurer of the Corporation.
1.19 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders shall be held
at the Office of the Corporation or at such other place within or without the
State of Delaware as shall be designated, from time to time, by the Board, the
Chairman or the President, and specified or fixed in the notice of such meeting
or in the waiver of notice thereof.
2.2 Annual Meeting. A meeting of Stockholders shall be held annually
for the election of Directors and the transaction of other business at such hour
and on such business day in each year as may be determined by resolution adopted
by affirmative vote of a majority vote of the Entire Board and designated in the
notice of meeting.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of Stockholders for the election of Directors and the transaction of
other business is not held on the date designated therefor or at any adjournment
of a meeting convened on such date, the Board shall call a meeting of
Stockholders for the
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election of Directors and the transaction of other business as soon thereafter
as convenient.
2.4 Special Meetings. A special meeting of Stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board, the
Chairman or by the President. At any special meeting of Stockholders, no
business may be transacted other than (i) such business stated in the notice
thereof given pursuant to Section 2.6 hereof or in any waiver of notice thereof
given pursuant to Section 2.7 hereof (in a form prepared by the Secretary) or
(ii) such business as is related to the purpose or purposes of such meeting and
which is properly brought before the meeting by or at the direction of the
Board.
2.5 Fixing Record Date. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof or (ii) to receive payment of any dividend or other
distribution or allotment of any rights, or to exercise any rights in respect of
any change, conversion or exchange of stock; or (b) any other lawful action, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date was adopted by the Board and which
record date shall not be (x) in the case of clause (a)(i) above, more than sixty
nor less than ten days before the date of such meeting and (y) in the case of
clause (a)(ii) or (b) above, more than sixty days prior to such action. If no
such record date is fixed:
2.5.1 the record date for determining Stockholders
entitled to notice of or to vote at a meeting of Stockholders shall be at
the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; and
2.5.2 the record date for determining Stockholders for
any purpose other than those specified in Section 2.5.1 hereof shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
in Section 2.7 hereof, whenever under the provisions of any statute, the
Certificate of Incorporation or these Bylaws, Stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. Unless otherwise
provided by any statute, the
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Certificate of Incorporation or these By-laws, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten nor more than
sixty days before the date of the meeting, to each Stockholder entitled to
notice of or to vote at such meeting. If mailed, such notice shall be deemed to
be given when deposited in the United States mail, with postage prepaid,
directed to the Stockholder at his or her address as it appears on the records
of the Corporation. An affidavit of the Secretary or an Assistant Secretary or
of the transfer agent of the Corporation that the notice required by this
Section 2.6 has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken,
and at the adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. If, however, the adjournment is
for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each Stockholder of record entitled to vote at the meeting.
2.7 Waivers of Notice. Whenever the giving of any notice is required
by statute, the Certificate of Incorporation or these Bylaws, a waiver thereof,
in writing, signed by the Stockholder or Stockholders entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Stockholder at a meeting shall
constitute a waiver of notice of such meeting except when the Stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been lawfully called or convened.
2.8 List of Stockholders. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
If any voting group exists, such list shall be arranged by voting group and
within each voting group by series or class of shares. Such list shall be open
to the examination of any Stockholder, the Stockholder's agent or attorney, at
the Stockholder's expense, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any Stockholder who is present. The Corporation shall maintain the
list of Stockholders in written form or in another form capable of conversion
into written form within a reasonable time. Upon the willful neglect or refusal
of the Directors to produce such a list at any meeting for the election of
Directors, they shall be ineligible for election to any office at such meeting.
The stock ledger shall be the only evidence as to who are the Stockholders
entitled to
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examine the stock ledger, the list of Stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of Stockholders.
2.9 Quorum of Stockholders; Adjournment. Except as otherwise
provided by any statute, the Certificate of Incorporation or these Bylaws, the
holders of a majority of all outstanding shares of stock entitled to vote at any
meeting of Stockholders, present in person or represented by proxy, shall
constitute a quorum for the transaction of any business at such meeting. When a
quorum is once present to organize a meeting of Stockholders, it is not broken
by the subsequent withdrawal of any Stockholders. The holders of a majority of
the shares of stock present in person or represented by proxy at any meeting of
Stockholders, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Shares of its own
stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of Directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each share of capital stock standing in his or her
name on the record of Stockholders determined in accordance with Section 2.5
hereof. If the Certificate of Incorporation provides for more or less than one
vote for any share on any matter, each reference in the Bylaws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in assuming
that the persons in whose names shares of capital stock stand on the stock
ledger of the Corporation are entitled to vote such shares. Holders of
redeemable shares of stock are not entitled to vote after the notice of
redemption is mailed to such holders and a sum sufficient to redeem the stocks
has been deposited with a bank, trust company, or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares of stock. At any meeting of Stockholders (at which a
quorum was present to organize the meeting), all matters, except as otherwise
provided by statute or by the Certificate of Incorporation or by these Bylaws,
shall be decided by a majority of the votes cast at such meeting by the holders
of shares present in person or represented by proxy and entitled to vote
thereon, whether or not a quorum is present when the vote is taken. Where a
separate vote by a class or classes of stock is required by statute, the
Certificate of Incorporation or these Bylaws, a majority of the outstanding
shares of such class or classes present in
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person or represented by proxy shall constitute a quorum entitled to take action
with respect to that vote on that matter, and such matter shall be decided by a
majority of the votes of such class or classes present in person or represented
by proxy at the meeting. Directors may be elected either by written ballot or
by voice vote. In voting on any other question on which a vote by ballot is
required by law or is demanded by any Stockholder entitled to vote, the voting
shall be by ballot. Each ballot shall be signed by the Stockholder voting or
the Stockholder's proxy and shall state the number of shares voted. On all
other questions, the voting may be by voice vote. Each Stockholder entitled to
vote at a meeting of Stockholders may authorize another person or persons to act
for such Stockholder by proxy. The validity and enforceability of any proxy
shall be determined in accordance with Section 212 of the General Corporation
Law. A Stockholder may revoke any proxy that is not irrevocable by attending
the meeting and voting in person or by filing an instrument in writing revoking
the proxy or by delivering a proxy in accordance with applicable law bearing a
later date to the Secretary.
2.11 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. The Corporation, in advance of any meeting of Stockholders, shall
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, the person presiding at the meeting shall
appoint, one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall (a) ascertain
the number of shares outstanding and the voting power of each, (b) determine the
shares represented at the meeting and the validity of proxies and ballots,
(c) count all votes and ballots, (d) determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination
by the inspectors, and (e) certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. The date and time of the opening
and the closing of the polls for each matter upon which the Stockholders will
vote at a meeting shall be determined by the person presiding at the meeting and
shall be announced at the meeting. No ballot, proxies or votes, or any
revocation thereof or change thereto, shall be accepted by the inspectors after
the closing of the polls unless the Court of Chancery of the State of Delaware
upon application by a Stockholder shall determine otherwise.
2.12 Conduct of Meetings. At each meeting of Stockholders, the
President, or in the absence of the President, the Chairman, or if there is no
Chairman or if there be one and the Chairman is absent, an Executive Vice
President, and in case more than one Executive Vice President shall be present,
that Executive Vice President designated by the Board (or in the absence of any
such designation, in the order of their first election, present), or it there is
no Executive Vice President or if there be one and the Executive Vice President
is absent, a Vice President, and in case more than one Vice President shall be
present, that Vice President designated by
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the Board (or in the absence of any such designation, in the order of their
first election, present), shall act as chairman of the meeting. The Secretary,
or in his or her absence one of the Assistant Secretaries, shall act as
secretary of the meeting. In case none of the officers above designated to act
as chairman or secretary of the meeting, respectively, shall be present, a
chairman or a secretary of the meeting, as the case may be, shall be chosen by a
majority of the votes cast at such meeting by the holders of shares of capital
stock present in person or represented by proxy and entitled to vote at the
meeting.
(b) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors. Nominations
of persons for election to the Board may be made at an annual meeting or special
meeting of Stockholders (i) by or at the direction of the Board, (ii) by any
nominating committee or person appointed by the Board or (iii) by any
Stockholder of the Corporation entitled to vote for the election of Directors at
the meeting who complies with the provisions of the following paragraph (persons
nominated in accordance with (iii) above are referred to herein as "Stockholder
nominees").
In addition to any other applicable requirements, all
nominations of Stockholder nominees must be made by written notice given by or
on behalf of a Stockholder of record of the Corporation (the "Notice of
Nomination"). The Notice of Nomination must be delivered personally to, or
mailed to, and received at the principal executive offices of the Corporation,
addressed to the attention of the Secretary, not less than 30 days nor more than
60 days prior to the annual meeting or special meeting of Stockholders;
provided, however, that in the event that less than 40 days' notice or prior
public disclosure of the date of the meeting is given or made to Stockholders,
notice by the Stockholder to be timely, must be received no later than the close
of business on the tenth day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made. Such Notice of
Nomination shall set forth (i) the name and record address of the Stockholder
proposing to make nominations, (ii) the class and number of shares of capital
stock held of record, held beneficially and represented by proxy held by such
person as of the record date for the meeting and as of the date of such Notice
of Nomination, (iii) all information regarding each Stockholder nominee that
would be required to be set forth in a definitive proxy statement filed with the
Securities and Exchange Commission pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended, or any successor statute thereto (the
"Exchange Act"), and the written consent of each such Stockholder nominee to
serve if elected, and (iv) all other information that would be required to be
filed with the Securities and Exchange Commission if the person proposing such
nominations were a participant in a solicitation subject to Section 14 of the
Exchange Act or any successor statute thereto. To the extent not included in
items (i) to (iv) above, such Notice of Nomination shall further set forth as to
the Stockholder giving such notice: (a) the name and address, as they appear on
the Corporation's stock transfer books, of such Stockholder and of the
beneficial owners (if any) of the Corporation's capital stock registered in such
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Stockholder's name and the name and address of other Stockholders known by such
Stockholder to be supporting such Stockholder nominee(s), (b) the class and
number of shares of the Corporation's capital stock which are held of record,
beneficially owned or represented by proxy by such Stockholder and by any other
Stockholders known by such Stockholder to be supporting such Stockholder
nominee(s) on the record date for the meeting in question (if such date shall
then have been made publicly available) and on the date of such Stockholder's
Notice of Nomination, and (c) a description of all arrangements or
understandings between such Stockholder and each Stockholder nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such Stockholder. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting,
that any proposed nomination of a Stockholder nominee was not made in accordance
with the foregoing procedures and, if he should so determine, he shall declare
to the meeting and the defective nomination shall be discarded. For purposes of
Sections 2.12(b) and (c) hereof, public disclosure shall be deemed to be first
made when disclosure of such date of the annual meeting of Stockholders is first
made in a press release reported by the Dow Jones News Services, Associated
Press or comparable national news service, or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act or any successor statute thereto.
(c) At any annual meeting of Stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting of Stockholders, (i) business must
be specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board, (ii) otherwise properly brought before the meeting
by or at the direction of the Board or (iii) otherwise properly brought before
the meeting by a Stockholder in accordance with the terms of the following
paragraph (business brought before the meeting in accordance with (iii) above is
referred to as "Stockholder business").
In addition to any other applicable requirements, all
proposals of Stockholder business must be made by written notice given by or on
behalf of a Stockholder of record of the Corporation (the "Notice of Business").
The Notice of Business must be delivered personally to, or mailed to, and
received at the principal executive offices of the Corporation, addressed to the
attention of the Secretary, not less than 30 days nor more than 60 days prior to
the annual meeting of Stockholders; provided, however, that in the event that
less than 40 days' notice or prior public disclosure of the date of the meeting
is given or made to Stockholders, notice by the Stockholder to be timely, must
be received no later than the close of business on the tenth day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such Notice of Business shall set forth (i) the name and
record address of the Stockholder proposing such Stockholder business, (ii) the
class and number of shares of capital stock held of record, held beneficially
and represented by proxy held by such person as of the
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record date for the meeting and as of the date of such Notice of Business,
(iii) a brief description of the Stockholder business desired to be brought
before the annual meeting and the reasons for conducting such Stockholder
business at the annual meeting, (iv) any material interest of the Stockholder in
such Stockholder business and (v) all other information that would be required
to be filed with the Securities and Exchange Commission if the person proposing
such Stockholder business were a participant in a solicitation subject to
Section 14 of the Exchange Act. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at the annual meeting of Stockholders
except in accordance with the procedures set forth in this Section 2.12(c),
provided, however, that nothing in this Section 2.12(c) shall be deemed to
preclude discussion by any Stockholder of any business properly brought before
the annual meeting in accordance with said procedure. 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
foregoing procedures and, if he should so determine, he shall declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
2.13 Order of Business. The order of business at all meetings of
Stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Action by Stockholders. Notwithstanding the provisions of
section 228 of the General Corporation Law (or any successor statute), any
action required or permitted by the General Corporation Law to be taken at any
annual or special meeting of Stockholders of the Corporation may be taken only
at such an annual or special meeting of Stockholders and cannot be taken by
written consent without a meeting.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or these
Bylaws or applicable laws, as it may deem proper for the conduct of its meetings
and the management of the Corporation. In addition to the powers expressly
conferred by these Bylaws, the Board may exercise all powers and perform all
acts that are not required, by these Bylaws or the Certificate of Incorporation
or by statute, to be exercised and performed by the Stockholders.
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3.2 Number; Qualification; Term of Office. The Board shall consist
of not less than three or more than 15 members. The exact number of Directors
within the minimum and maximum limitations specified in the preceding sentence
shall be fixed from time to time by resolution adopted by a majority of the
Entire Board then in office, whether or not present at a meeting. Directors
need not be Stockholders. The Directors shall be divided into three classes
with the term of office of the first class to expire at the first annual meeting
of Stockholders of the Corporation next following the end of the Corporation's
fiscal year ending December 31, 1998, the term of office of the second class to
expire at the first annual meeting of Stockholders of the Corporation next
following the end of the Corporation's fiscal year ending December 31, 1999 and
the term of office of the third class to expire at the annual meeting of
Stockholders of the Corporation next following the end of the Corporation's
fiscal year ending December 31, 2000. At each annual meeting of Stockholders
following such initial election as specified above, Directors elected to succeed
those Directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of Stockholders after their
election.
3.3 Tenure. Notwithstanding any provisions to the contrary contained
herein, (i) each Director shall hold office until his or her successor is
elected and qualified, or until the earlier of such Director's death,
resignation or removal and (ii) the term of any director who is also an officer
of the Corporation shall terminate if he or she ceases to be an officer of the
Corporation.
3.4 Election. Directors shall, except as otherwise required by
statute or by the Certificate of Incorporation, be elected by a plurality of the
votes cast at a meeting of Stockholders by the holders of shares present in
person or represented by proxy at the meeting and entitled to vote in the
election.
3.5 Newly Created Directorships and Vacancies. Subject to the rights
of the holders of any series of preferred stock of the Corporation then
outstanding, newly created directorships resulting from any increase in the
authorized number of Directors or any vacancies in the Board resulting from
death, resignation, retirement, disqualification, removal from office or other
cause shall be filled by a majority vote of the remaining Directors then in
office although less than a quorum, or by a sole remaining Director and
Directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which they have been elected
expires or, in each case, until their respective successors are duly elected and
qualified. No decrease in the number of Directors constituting the Board shall
shorten the term of any incumbent Director. When any Director shall give notice
of resignation effective at a future date, the Board may fill such vacancy to
take effect when such resignation shall become effective.
3.6 Resignation. Any Director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein
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specified, and, unless otherwise specified in such resignation, the acceptance
of such resignation shall not be necessary to make it effective.
3.7 Removal. Any one or more or all of the Directors may be removed,
at any time, but only for cause by the Stockholders having at least a majority
in voting power of the then issued and outstanding shares of capital stock of
the Corporation. If pursuant to the Certificate of Incorporation a Director is
elected by a voting group of Stockholders, only the Stockholders of the voting
group may participate in the vote to remove such Director.
3.8 Compensation. Each Director, in consideration of his or her
service as such, may receive from the Corporation such amount per annum or such
fees for attendance at Directors' meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any, incurred by such Director in connection with the performance
of his or her duties. Each Director who shall serve as a member of any
committee of Directors in consideration of serving as such may receive such
additional amount per annum or such fees for attendance at committee meetings,
or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by
such Director in the performance of his or her duties. Nothing contained in
this Section 3.8 shall preclude any Director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.9 Times and Places of Meetings. The Board may hold meetings, both
regular and special, either within or without the State of Delaware. The times
and places for holding meetings of the Board may be fixed from time to time by
resolution of the Board or (unless contrary to a resolution of the Board) in the
notice of the meeting.
3.10 Annual Meetings. On the day when and at the place where the
annual meeting of Stockholders for the election of Directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, provided a quorum shall be present, for the purposes of
organization, the election of officers and the transaction of other business.
The annual meeting of the Board may be held at any other time and place
specified in a notice given as provided in Section 3.12 hereof for special
meetings of the Board or in a waiver of notice thereof.
3.11 Regular Meetings. Regular meetings of the Board may be held
without notice at such times and at such places as shall from time to time be
determined by the Board.
3.12 Special Meetings. Special meetings of the Board may be called by
the President or any Director then serving on at least one day's notice to each
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Director given by one of the means specified in Section 3.15 hereof other than
by mail, or on at least three days' notice if given by mail.
3.13 Telephone Meetings. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of such
committee by means of 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 3.13 shall constitute
presence in person at such meeting.
3.14 Adjourned Meetings. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least one day's
notice of any adjourned meeting of the Board shall be given to each Director
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 3.15 hereof other than by mail,
or at least three days' notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as originally
called.
3.15 Notice Procedure. Subject to Sections 3.13 and 3.16 hereof,
whenever, under the provisions of any statute, the Certificate of Incorporation
or these Bylaws, notice is required to be given to any Director, such notice
shall be deemed given effectively if given in person or by telephone, by mail
addressed to such Director at such Director's address as it appears on the
records of the Corporation, with postage thereon prepaid, or by telegram, telex,
telecopy or similar means addressed as aforesaid.
3.16 Waiver of Notice. Whenever the giving of any notice is required
by statute, the Certificate of Incorporation or these Bylaws, a waiver thereof,
in writing, signed by the person or persons entitled to said notice, whether
before or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by a person at a meeting shall constitute a
waiver of notice of such meeting except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Directors or a committee of Directors
need be specified in any written waiver of notice unless so required by statute,
the Certificate of Incorporation or these Bylaws.
3.17 Organization. At each meeting of the Board, the Chairman, or in
the absence of the Chairman, the President, or in the absence of the President,
a chairman chosen by a majority of the Directors present, shall preside. The
Secretary shall act as secretary at each meeting of the Board. In case the
Secretary shall be absent from any meeting of the Board, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the
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Secretary and all Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
3.18 Quorum of Directors. Except as otherwise expressly provided by
statute or the Certificate of Incorporation, the presence in person of a
majority of the Entire Board shall be necessary and sufficient to constitute a
quorum for the transaction of business at any meeting of the Board, but a
majority of a smaller number may adjourn any such meeting to a later date.
3.19 Action by Majority Vote. Except as otherwise expressly required
by statute, the Certificate of Incorporation or these Bylaws, the act of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board.
3.20 Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all Directors or members of such 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 or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board, by resolution adopted by a majority of the Entire Board,
may designate one or more committees, each committee to consist of one or more
of the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. If a member of a
committee shall be absent from any meeting, or disqualified from voting thereat,
the remaining member or members present and not disqualified from voting,
whether or not such member or members constitute a quorum, may, by a unanimous
vote, appoint another member of the Board to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board or these Bylaws, shall have and may
exercise all the powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be impressed on all papers that may require it, but no such
committee shall have the power or authority of the Board in reference to: (i)
approving, or recommending to the Stockholders, any action that the Delaware
General Corporation Law requires to be approved by the Stockholders; (ii)
filling vacancies on the Board or on any of its committees; (iii) amending the
Certificate of Incorporation; (iv) adopting, amending, or repealing these
Bylaws; (v) approving a plan of merger not requiring approval of the
Stockholders; (vi) authorizing or
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approving a distribution, except according to a general formula or method
prescribed by the Board; or (vii) authorizing or approving the issuance or sale
or contract for sale of shares, or determine the designation and relative
rights, preferences, and limitations of a class or series of shares, except that
the Board may authorize a committee, or a senior executive officer of the
Corporation, to do so within limits specifically prescribed by the Board.
Unless otherwise specified in the resolution of the Board designating a
committee, at all meetings of such committee a majority of the total number of
members of the committee shall constitute a quorum for the transaction of
business, and the vote of a majority of the members of the committee present at
any meeting at which there is a quorum shall be the act of the committee. Each
committee shall keep regular minutes of its meetings and report the same to the
Board when required. Unless the Board otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board conducts its business pursuant to
Article 3 of these Bylaws.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President,
a Secretary, a Treasurer and such other officers as the Board may appoint,
including a Chairman, a Chief Executive Officer, one or more Executive Vice
Presidents, one or more Vice Presidents and one or more Assistant Secretaries
and Assistant Treasurers, who shall exercise such powers and perform such duties
as shall be determined from time to time by the Board. The Board may use
descriptive words or phrases to designate the standing, seniority or areas of
special competence of the Vice Presidents elected or appointed by it. Any
number of offices may be held by the same person unless the Certificate of
Incorporation or these Bylaws otherwise provide.
5.2 Appointment. The officers of the Corporation shall be chosen by
the Board at its annual meeting or at such other time or times as the Board
shall determine.
5.3 Compensation. The compensation of all officers of the
Corporation shall be fixed by, or in the manner prescribed by, the Board. No
officer shall be prevented from receiving a salary or other compensation by
reason of the fact that the officer is also a Director.
5.4 Term of Office. Each officer of the Corporation shall hold
office for the term for which he or she is elected and until such officer's
successor is chosen and qualifies or until such officer's earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. Such
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resignation shall take effect at the date of receipt of such notice or at such
later time as is therein specified, and, unless otherwise specified, the
acceptance of such resignation shall not be necessary to make it effective. The
resignation of an officer shall be without prejudice to the contract rights of
the Corporation, if any. Any officer elected or appointed by the Board may be
removed at any time, with or without cause, by vote of a majority of the Entire
Board. Any vacancy occurring in any office of the Corporation shall be filled
by the Board. The removal of an officer without cause shall be without
prejudice to the officer's contract rights, if any. The election or appointment
of an officer shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any
or all of its officers or agents by bond or otherwise.
5.6 Chairman. The Chairman shall exercise such duties as are and
may be prescribed from time to time by the Board. In the absence of or
disability of the Chairman, an officer appointed by the Chairman, or if the
Chairman fails to make such appointment, by the Board, shall perform the duties
and exercise the powers of the Chairman. The Chairman may sign, execute and
deliver, in the name of the Corporation, powers of attorney, contracts, bonds
and other obligations which implement policies established by the Board. The
Chairman shall preside at all meetings the Board at which he is present, and
shall perform such other duties as may be prescribed from time to time by the
Board or these Bylaws.
5.7 Chief Executive Officer. The Chief Executive Officer shall
exercise such duties as are and may be prescribed from time to time by the
Board. The Chief Executive Officer may sign, execute and deliver, in the name
of the Corporation, powers of attorney, contracts bonds and other obligations
which implement policies established by the Board.
5.8 President. The President shall be responsible to, and shall
exercise such duties as are and may be prescribed from time to time by, the
Board. The President may sign, execute and deliver, in the name of the
Corporation, powers of attorney, contracts, bonds and other obligations which
implement policies established by the Board.
5.9 Executive Vice President. In the absence of the President or in
the event of his death, inability or refusal to act, the Executive Vice
President, if any, or in the event there be more than one Executive Vice
President, the Executive Vice Presidents, in the order designated, or in the
absence of any designation, then in the order of their first 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
Executive Vice President shall generally assist the President and shall perform
such other duties and have such other powers as the Board may from time to time
prescribe.
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5.10 Vice President. In the absence of the Executive Vice President
or in the event of his death, inability or refusal to act, the Vice President,
if any, or in the event there be more than one Vice President, the Vice
Presidents, in the order designated, or in the absence of any designation, then
in the order of their first election, shall perform the duties of the Executive
Vice President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Executive Vice President. The Vice President
shall generally assist the President and shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
5.11 Secretary. The Secretary shall attend all meetings of the Board
and all meetings of the stockholders and shall record all the proceedings of the
meetings of the stockholders and of the Board in a book to be kept for that
purpose and shall perform like duties for the standing committees when requested
by such committees. The Secretary shall give, or cause to be given, required
notice of all meetings of the stockholders and the Board, and shall perform such
other duties as may be prescribed by the Board or assigned by the President or
Chairman. The Secretary shall have custody of the stock certificate books and
stockholder records and such other books and records as the Board may direct.
The Secretary shall have custody of the corporate seal of the Corporation and
shall have authority to affix the same to any instrument, and when so affixed,
it may be attested by the Secretary's signature. The Board may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing thereof by his signature.
5.12 Assistant Secretary. Any Assistant Secretary elected by the
Board shall have the same duties as prescribed for the Secretary and shall
perform such duties at the direction of the Secretary, to assist the Secretary,
and in the absence of the Secretary, at the direction of the Chairman, the
President or any Vice President, and otherwise as directed from time to time by
the Chairman, the President or the Board.
5.13 Treasurer or Chief Financial Officer. The Treasurer or Chief
Financial Officer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board, and shall disburse the funds of the Corporation,
as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Chairman, the President and the Board at its regular
meetings, or when the Board so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation, and shall perform
such other duties and have such other powers as the Board, the Chairman or the
President may from time to time prescribe.
5.14 Assistant Treasurer. Any Assistant Treasurer elected by the
Board shall have the same duties as prescribed for the Treasurer and shall
perform
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such duties at the direction of the Treasurer, to assist the Treasurer, and in
the absence of the Treasurer, at the direction of the Chairman, the President or
any Vice President, and otherwise as directed from time to time by the Chairman,
the President or the Board.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution of Contracts. The Board, except as otherwise provided
in these Bylaws, may prospectively or retroactively authorize any officer or
officers, employee or employees or agent or agents, in the name and on behalf of
the Corporation, to enter into any contract or execute and deliver any
instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
6.2 Loans. The Board may prospectively or retroactively authorize
the President or any other officer, employee or agent of the Corporation to
effect loans and advances at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual, and
for such loans and advances the person so authorized may make, execute and
deliver promissory notes, bonds or other certificates or evidences of
indebtedness of the Corporation, and, when authorized by the Board so to do, may
pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority
conferred by the Board may be general or confined to specific instances, or
otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all evidences of
indebtedness of the Corporation shall be signed on behalf of the Corporation in
such manner as shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation with such
banks, trust companies, investment banking firms, financial institutions or
other depositaries as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power to select may from time
to time be delegated by the Board.
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ARTICLE 7
STOCK AND DIVIDENDS
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the Chairman, the
President, an Executive Vice President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and may be
impressed with the seal of the Corporation or a facsimile thereof. If the
Corporation is authorized to issue direct classes of shares or different series
within a class, the designations, relative rights, preferences, and limitations
applicable to each class and the variations in rights, preferences, and
limitations determined for each series (and the authority of the Board to
determine variations for future series) shall be summarized on the front or back
of each certificate of shares of such class or series. Alternatively, each
certificate may state conspicuously on its front or back that the Corporation
will furnish the Stockholder this information on request in writing and without
charge. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the Corporation. The signatures
of the officers upon a certificate may be facsimiles, if the certificate is
countersigned, manually or by facsimile signature, by a transfer agent or
registrar other than the Corporation itself or its employee. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon any certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, such certificate
may, unless otherwise ordered by the Board, 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.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by the holder's duly authorized attorney appointed by a power of
attorney duly executed and filed with the Secretary or a transfer agent of the
Corporation, and on surrender of the certificate or certificates representing
such shares of capital stock properly endorsed for transfer and upon payment of
all necessary transfer taxes. Every certificate exchanged, returned or
surrendered to the Corporation shall be marked "Canceled," with the date of
cancellation, by the Secretary or an Assistant Secretary or the transfer agent
of the Corporation. A person in whose name shares of capital stock shall stand
on the books of the Corporation shall be deemed the owner thereof to receive
dividends, to vote as such owner and for all other purposes as respects the
Corporation. No transfer of shares of capital stock shall be valid as against
the Corporation, its Stockholders and creditors for any purpose, except to
render the transferee liable for the debts of the Corporation to the extent
provided by
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law, until such transfer shall have been entered on the books of the Corporation
by an entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his or her legal representatives, to make proof
satisfactory to the Board of such loss, destruction, theft or mutilation and to
advertise such fact in such manner as the Board may require, and to give the
Corporation and its transfer agents and registrars, or such of them as the Board
may require, a bond in such form, in such sums and with such surety or sureties
as the Board may direct, to indemnify the Corporation and its transfer agents
and registrars against any claim that may be made against any of them on account
of the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Rules and Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws or with
the Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder, including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number of Stockholders
or among such Stockholders and the Corporation. No restriction so imposed shall
be binding with respect to capital stock issued prior to the adoption of the
restriction unless the holders of such capital stock are parties to an agreement
or voted in favor of the restriction.
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7.7 Dividends, Surplus, Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such amounts
and at such time or times as it, in its discretion, shall deem advisable
giving due consideration to the condition of the affairs of the
Corporation;
7.7.2 may use and apply, in its discretion, any of the
surplus of the Corporation in purchasing or acquiring any shares of capital
stock of the Corporation, or purchase warrants therefor, in accordance with
law, or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness; and
7.7.3 may set aside from time to time out of such
surplus or net profits such sum or sums as, in its discretion, it may think
proper, as a reserve fund to meet contingencies, or for equalizing
dividends or for the purpose of maintaining or increasing the property or
business of the Corporation, or for any purpose it may think conducive to
the best interests of the Corporation.
ARTICLE 8
BOOKS AND RECORDS
8.1 Books and Records. There shall be kept at the Office of the
Corporation correct and complete records and books of account recording the
financial transactions of the Corporation and minutes of the proceedings of the
Stockholders, the Board and any committee of the Board. The Corporation shall
keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
Stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
8.2 Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
8.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
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and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
Stockholders for inspection.
ARTICLE 9
SEAL
The corporate seal, if the Board elects to adopt one, 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 otherwise reproduced.
ARTICLE 10
FISCAL YEAR
The fiscal year of the Corporation shall end on December 31 of each
calendar year, and may be changed, by resolution of the Board.
ARTICLE 11
PROXIES AND CONSENTS
Unless otherwise directed by the Board, the Chairman, the President,
any Executive Vice President, any Vice President, the Secretary or the
Treasurer, or any one of them, may execute and deliver on behalf of the
Corporation proxies respecting any and all shares or other ownership interests
of any Other Entity owned by the Corporation appointing such person or persons
as the officer executing the same shall deem proper to represent and vote the
shares or other ownership interests so owned at any and all meetings of holders
of shares or other ownership interests, whether general or special, and/or to
execute and deliver consents respecting such shares or other ownership
interests; or any of the aforesaid officers may attend any meeting of the
holders of shares or other ownership interests of such Other Entity and thereat
vote or exercise any or all other powers of the Corporation as the holder of
such shares or other ownership interests.
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ARTICLE 12
OFFICES
12.1 Registered Office. The registered office of the Corporation
shall be at 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent, State of Delaware. The registered agent of the corporation at such
address is The Prentice-Hall Corporation System, Inc.
12.2 Other Offices. The Corporation may also have offices, including
its principal office, at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE 13
EMERGENCY BYLAWS
Unless the Certificate of Incorporation provides otherwise, the
following provisions of this Article 13 shall be effective during an emergency
resulting from an attack on the United States or during any nuclear or atomic
disaster or during the existence of a similar catastrophe. During such
emergency:
13.1 Notice to Board Members. Any one member of the Board or any one
of the following officers: Chairman, President, any Executive Vice President,
any Vice President, Secretary, or Treasurer, may call a meeting of the Board.
Such person shall use reasonable efforts to notify all members of the Board, but
notice of such meeting need be given only to those Directors whom after
reasonable effort it is practicable to reach, and may be given in any practical
manner, including by publication and radio. Such notice shall be given at least
six hours prior to commencement of the meeting.
13.2 Temporary Directors and Quorum. One or more officers of the
Corporation present at the emergency Board meeting, as is necessary to achieve a
quorum, shall be considered to be Directors for the meeting, and shall so serve
in order of rank, and within the same rank, in order of seniority. In the event
that less than a quorum of the Directors are present (including any officers who
are to serve as Directors for the meeting), those Directors present (including
the officers serving as Directors) shall constitute a quorum. Notwithstanding
the foregoing, no meeting of the Board shall take place pursuant to this Article
13 without the presence of at least three Directors (not including officers
serving as Directors for the meeting).
13.3 Actions Permitted To Be Taken. The Board as constituted in
Section 13.2 hereof, and after notice as set forth in Section 13.1 hereof may:
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13.3.1 prescribe emergency powers to any officer of the
Corporation;
13.3.2 delegate to any officer or Director, any of the powers of
the Board;
13.3.3 designate lines of succession of officers and agents, in
the event that any of them are unable to discharge their duties;
13.3.4 relocate the principal place of business, or designate
successive or simultaneous principal places of business; and
13.3.5 take any other action reasonably necessary to carry on the
business of the Corporation.
13.4 Effectiveness of Emergency Bylaws. To the extent that they are
not inconsistent with the provisions of this Article 13, all other provisions of
these Bylaws shall remain in effect during an emergency. Upon termination of
the emergency, the provisions of this Article 13 shall cease to be operative.
ARTICLE 14
AMENDMENTS
Except as otherwise expressly specified in the Certificate of
Incorporation or these Bylaws, the Board may from time to time adopt, amend or
repeal the Bylaws; provided, however, that any Bylaws adopted or amended by the
Board may be amended or repealed, and any Bylaws may be adopted, by a vote of
the Stockholders having at least two-thirds of the voting power of the then
issued and outstanding shares of capital stock of the Corporation.
* * *
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CERTIFICATION
The undersigned, in his capacity as Secretary of the Corporation,
hereby certifies that the foregoing is the Amended and Restated Bylaws of the
Corporation adopted by the Board of the Corporation on this _____ day of July,
1998.
______________________________
Michael A. Lubin
Secretary of Pathnet, Inc.
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