Exhibit 3.2
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AMENDED AND RESTATED BYLAWS
OF
PATHNET, INC.
A Delaware Corporation
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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.
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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
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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 election of Directors and the transaction of other
business as soon thereafter as convenient.
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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 entitled to express consent to corporate action in
writing without a meeting (unless otherwise provided in the
Certificate of Incorporation), when no prior action by the Board is
required under the General Corporation Law, shall be the first day on
which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation 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; and when prior action by the Board is required under the
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 date on which the Board
adopts the resolution taking such prior action; and
2.5.3 the record date for determining
Stockholders for any purpose other than those specified in Section
2.5.1 and 2.5.2 hereof shall be at the close of business on the day on
which the Board adopts the resolution relating thereto.
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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.
Delivery made to the Corporation's registered office in
accordance with Section 2.5.2 shall be by hand or by certified or registered
mail, return receipt requested.
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 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
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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 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
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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 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
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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. (a) 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 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.
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 WRITTEN CONSENT OF STOCKHOLDERS WITHOUT A MEETING. Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted by the General Corporation Law to be taken at any annual or special
meeting of Stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents 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 and shall be delivered (by hand or by certified or registered mail,
return receipt requested) to the Corporation 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. 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 delivered in the manner required by
this Section 2.14, written consents signed by a
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sufficient number of Stockholders to take action are delivered to the
Corporation as aforesaid. 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 and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of Stockholders to take the action were delivered to the
Corporation as aforesaid.
ARTICLE 3
DIRECTORS
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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.
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
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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 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
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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 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
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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 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
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COMMITTEES OF THE BOARD
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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 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
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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
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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 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.
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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.
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.
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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 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.
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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.
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.
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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 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
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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.
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
20
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 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.
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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.
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.
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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:
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;
23
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.
* * *
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.