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EXHIBIT 3.2
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AMENDED AND RESTATED BY-LAWS
OF
GLOBIX CORPORATION
(EFFECTIVE NOVEMBER 14, 2000)
ARTICLE I. General.
1.01 Interpretation; Governing Instruments. Terms used and not defined in
these By-Laws shall have the meanings set forth in, and shall be interpreted in
accordance with, the Delaware General Corporation Law ("DGCL") and other
applicable statutes and the Corporation's certificate of incorporation
(collectively, the "governing instruments") as from time to time in effect.
Whether or not so stated, these By-Laws are subject to such governing
instruments, and in the event of any conflict or inconsistency the provisions of
the governing instruments shall control.
1.02 Registered Office. The address of the Company's registered office in
the State of Delaware is c/o United Corporate Services, Inc., 15 East North
Street, in the City of Dover, County of Kent, State of Delaware 19901 and the
name of the registered agent at said address is United Corporate Services, Inc.
1.03 Other Offices; Business Activities. The Corporation may have such
other offices and conduct its business activities at such other locations within
or without the State of Delaware, as the board of directors (the "Board")
determines.
ARTICLE II. Stockholders.
2.01 Annual Meeting. The annual stockholders meeting for the election of
directors and the transaction of other business shall be held annually during
the fifth full month following the end of the Corporation's fiscal year on such
date and time as the Board may fix.
2.02 Special Meeting. Special stockholders meetings may be called by the
Board or the chairman and shall be called by the chairman, the chief executive
officer, the president, the executive vice president, any vice president or the
secretary upon written request, stating the purpose(s) of the meeting, by the
holders of not less than a majority of the outstanding shares entitled to vote.
Only such business may be transacted at a special meeting as relates to the
purpose(s) set forth in the notice of meeting.
2.03 Place of Meeting. Stockholders meetings shall be held at such place,
within or without the State of Delaware, as may be fixed by the Board or, if not
so fixed, at the registered office of the Corporation in the State of Delaware.
Attendance at any meeting in person or by proxy shall constitute a waiver of
notice, except when the person or proxy attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
2.04 Notice of Meetings; Waiver. Written notice of each stockholders
meeting shall be given, personally or by mail, not less than ten nor more than
sixty days before the meeting date to each stockholder entitled to vote at the
meeting at his address appearing on the record of stockholders or, if he shall
have filed with the secretary a written request that notices be mailed to some
other address, at such other address. Each notice shall state the place, date
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and time of the meeting and, unless an annual meeting, shall indicate that it is
being issued by or at the direction of the person(s) calling the meeting. Notice
of a special meeting shall also state the purpose(s) for which called. Notice of
an adjourned meeting shall be unnecessary unless otherwise required by the
governing instruments.
2.05 Quorum. Subject to the governing instruments, the holders of one-third
of the shares entitled to vote shall constitute a quorum for the transaction of
any business. When a specified item of business must be voted on by a class or
series, voting as a class, however, the holders of a majority of the shares of
such class or series shall constitute a quorum. Despite the absence of a quorum
the stockholders present may by majority vote adjourn a meeting without further
notice unless otherwise required by the governing instruments.
2.06 Voting; Proxies. Subject to the governing instruments:
(a) Stockholders of record shall be entitled to one vote for each
share held. Any corporate action other than the election of directors (as to
which see Section 3.01 of these By-Laws) shall be authorized by a majority of
the votes cast by holders entitled to vote.
(b) Any stockholder may vote in person or by proxy signed by him or
his attorney-in-fact. No proxy shall be valid after the expiration of eleven
months from its date unless it otherwise provides.
2.07 Action Without Meeting. Subject to the governing instruments, any
stockholder action may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
shares necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE III. Directors.
3.01 Authority; Number; Election; Qualification; Term. Subject to the
governing instruments, the Corporation's business shall be managed under the
direction of the Board which shall consist of two (2) directors, or such other
number, not less than two directors, as may be fixed from time to time by a vote
of the shareholders or by a majority of the Board, provided that no decrease in
the number of directors shall decrease the term of any incumbent director.
Directors shall be elected at each annual stockholders meeting, shall be at
least eighteen (18) years old, but need not be stockholders, and shall hold
office until the next annual stockholders meeting and the election and
qualification of their respective successors. Election of directors need not be
by ballot.
3.02 Annual, Regular and Special Meetings; Place. The annual Board meeting
for the election of officers and the transaction of other business shall be held
without notice immediately following and at the same place as the annual
stockholders meeting or, if a quorum is not present or the Board otherwise
determines, as promptly as practicable thereafter. Regular Board meetings for
the transaction of all business may be held without notice at such times and
places as the Board determines. Special Board meetings may be called by the
chairman of the Board, the chief executive officer or a majority of the
directors. Except as provided above, Board meetings shall be held at such place,
within or without the State of Delaware, as the Board determines or, if not so
determined, at the principal office of the Corporation.
3.03 Notice of Meetings; Waiver, Adjournment. Notice of the time and place
of each deferred annual and of each special Board meeting shall be given the
directors by mail not less than three, or personally or by telephone, telegram
or telegraph not less than one, day prior to the meeting. Notice of any meeting
need not specify its purpose(s). Notice need not be given to any director who
submits a signed waiver of notice before, at or after the meeting or who attends
the meeting without protesting, prior to or at its commencement, lack of notice
to him.
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Whether or not a quorum is present, a majority of the directors present may
adjourn any meeting without notice to directors not present unless the meeting
is adjourned for more than 48 hours.
3.04 Quorum; Actions by Board. Subject to the governing instruments:
(a) Except as otherwise provided in these By-Laws, a majority of the
entire Board shall constitute a quorum for the transaction of business and the
vote of a majority of the directors present at the taking of the vote, if a
quorum is then present, shall be the act of the Board. Directors may neither be
present nor vote by proxy.
(b) Any action by the Board or any committee may be taken without a
meeting if all directors or committee members consent in writing to the adoption
of a resolution authorizing the action. The resolution and consent shall be
filed with the Board or committee minutes.
(c) Any one or more directors or committee members may participate in
a Board or committee meeting by means of a conference telephone or similar
communications equipment allowing all persons participating to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
3.05 Resignation; Removal; Vacancies. Subject to the governing instruments:
(a) A director may resign at any time. Any or all directors may be
removed at any time for or without cause by stockholder vote and for cause by
the Board.
(b) Board vacancies occurring for any reason, including vacancies
resulting from an increase in the number of directors, but excluding vacancies
resulting from the removal of directors without cause, may be filled by Board
vote or, if the number of directors then in office is less than a quorum, by
vote of a majority of the directors then in office. Vacancies occurring for any
reason may also be filled by stockholders.
3.06 Compensation. Directors shall receive such compensation as the Board
determines to be appropriate, and shall be reimbursed for reasonable expenses
incurred in the performance of, their services to the Corporation as directors
and in other capacities.
3.07 Committees. The Board, by resolution adopted by a majority of the
entire Board, may designate an executive committee and any other committee it
deems necessary or desirable to designate, each committee consisting of at least
one director. Any committee designated by the Board shall serve solely at the
discretion of the Board. The Board may adopt qualification criteria, such as
financial expertise or independence, as requirements for membership on certain
committees. The Board, but not any committee, may fill committee vacancies and
may designate alternative qualified committee members to replace absent members
at any committee meetings. The executive committee has the power and authority
to act in place of the Board in all matters except amendment to the Certificate
of Incorporation and except as restricted by the DGCL and the action of the
Board. Other committees shall have such authority as the Board determines. The
provisions of Sections 3.02, 3.03 and 3.04 of these By-Laws relating to the
holding of meetings, notice, waiver, adjournment, quorum and Board action shall
apply to committees unless the Board otherwise determines. The Board may adopt
additional rules of procedure for any committee not inconsistent with these
By-Laws or may delegate this authority to any committee.
3.08 Indemnification. The Company shall indemnify its officers and
directors under certain circumstances, including those circumstances in which
indemnification would otherwise be discretionary, and the Company is required to
advance expenses to its officers and directors as incurred in connection with
proceedings against them for which they may be indemnified.
ARTICLE IV. Executive and Other Officers.
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4.01 Positions; Election; Term; Removal. The executive officers of the
Corporation may include any one or more of the following: the chairman of the
Board (if the Board so determines), a chief executive officer, the president,
one or more executive vice presidents, one or more senior vice presidents, (each
such executive or senior vice president with such designations and rankings as
the Board may fix), the secretary, one or more assistant secretaries, the
treasurer and one or more assistant treasurers, each of whom shall be elected or
appointed annually by the Board. Officers other than the chairman need not be
directors. Any two or more offices may be held by the same person except the
offices of president and secretary. Officers shall serve at the Board's
discretion until the next annual Board meeting and the election of their
respective successors. The Board may at any time remove any officer with or
without cause and may fill any vacancies among the officers however occurring.
4.02 Chief Executive Officer, Additional Powers and Duties of Officers.
(a) Subject to the Board's overall authority, the chief executive
officer shall have general control and supervision of the Corporation's business
and affairs and such other powers and duties consistent with these By-Laws as
are customarily possessed by corporate chief executive officers and as the Board
assigns.
(b) Subject to the Board's overall authority, each officer shall have
such powers and duties in addition to those specifically provided in these
By-Laws as are customarily possessed by like corporate officers holding the same
position and as the Board or chief executive officer assigns. Such officers may,
at the direction of the Board and/or the chief executive officer or in
accordance with general delegations of authority or the respective resolutions
of the Board, execute in the Corporation's name all authorized deeds, mortgages,
bonds, contracts or other instruments requiring a seal, under the seal of the
Corporation, except in cases in which the signing or execution thereof shall be
expressly delegated by the Board to some other officer or agent of the
Corporation.
4.03 Chairman of the Board. The chairman shall preside at all Board and
stockholder meetings.
4.04 Chief Executive Officer. The chief executive officer shall be the
Corporation's chief executive officer. He shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board are carried into effect.
4.05 President. Subject to the direction of the chief executive officer,
the president shall have such authority as may be delegated by the chief
executive officer and/or the Board. Unless and until the Board otherwise
determines, in the event of the absence or inability to act of the chief
executive officer, or if there be no chief executive officer, the president
shall have the powers and duties of the chief executive officer.
4.06 Executive and Senior Vice Presidents. Each executive vice president
and senior vice president shall have such further title and such powers and
duties as the Board and/or the chief executive officer, if so authorized by the
Board, assigns. Unless and until the Board otherwise determines, in the event of
the absence or inability to act of the president, or if there be no president,
the ranking executive vice president or senior vice president shall have the
powers and duties of the president.
4.07 Vice Presidents and other Subordinate Officers. The Board may also
appoint, or may delegate to any executive officer the appointment of, one or
more vice presidents and other subordinate and assistant officers with such
titles and duties as the Board or such executive officer may determine. Such
vice presidents and other subordinate and assistant officers shall not be
executive officers unless so designated by the Board.
4.08 Secretary and Assistant Secretary. The secretary shall give all
meeting and other required corporate notices except as otherwise provided in
these By-Laws; shall attend and keep minutes of all Board and stockholder
proceedings; shall have charge of and maintain the corporate stock books and
records (unless the Corporation has a transfer agent or registrar) and such
other corporate records as the Board directs; and shall keep the corporate seal
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and, when duly authorized, shall affix such seal to all necessary corporate
instruments. The assistant secretary shall, in the absence or inability to act
of the secretary, or if there be no secretary, have the powers and duties of the
secretary.
4.09 Treasurer and Assistant Treasurer. Unless another officer or employee
is so designated by the Board, the treasurer shall be the Corporation's chief
financial officer, and, its chief accounting officer and shall have custody of
its funds and securities and shall maintain its financial books and records. The
treasurer (or such other designated officer or employee) shall disburse the
funds of the Corporation as may be ordered by the Board, taking proper vouchers
for such disbursements, and shall render to the chairman, the chief executive
officer, the president and the Board, at its regular meetings, or when the Board
so directs, an account of all his transactions as treasurer and of the financial
condition of the Corporation.
4.10 Compensation. The Board shall fix the compensation, if any, of all
officers who are directors and may fix, or delegate to the chief executive
officer authority to fix, the compensation of other officers.
ARTICLE V. Shares and Transfer.
5.01 Certificates. Shares of the Corporation shall be represented by
certificates in such form consistent with the governing instruments as the Board
approves, shall be signed by the chairman, president or any vice president and
the secretary or treasurer, or any assistant secretary or assistant treasurer,
and shall be sealed with the corporate seal or its facsimile. Officers'
signatures may be facsimiles if the certificate is signed by a transfer agent or
registered by a registrar other than the Corporation or its employee.
Certificates may be used although the officer who has signed, or whose facsimile
signature has been used, is no longer such officer. If the Corporation is
authorized to issue shares of more than one class, certificates shall contain
the statements required by statute.
5.02 Transfer Agents; Registrars. The Board may appoint one or more
transfer agents and/or registrars, the duties of which may be combined and
prescribe their duties.
5.03 Transfers; Lost Certificates. Subject to the governing instruments and
compliance with such additional requirements as the Board may establish:
(a) Shares shall be transferable only on the Corporation's books by
the holders or their duly authorized attorneys or legal representatives upon
surrender of certificates properly endorsed.
(b) Replacements for certificates alleged to have been lost or
destroyed may be issued upon delivery of such proof of loss and/or bond with or
without surety, or other security, sufficient to indemnify the Corporation as
the Board determines.
5.04 Record Date. The Board may fix in advance a record date for the
determination of stockholders entitled to notice of or to vote at any
stockholders meeting, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining stockholders entitled to
receive any dividend, distribution or allotment of rights, or for the purpose of
any other action. The record date shall not be more than sixty nor less than ten
days prior to the meeting date nor more than sixty days prior to any other
action.
ARTICLE VI. Miscellaneous.
6.01 Seal. The corporate seal shall be in such form as the Board may
approve.
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6.02 Fiscal Year. The Board may establish and change the Corporation's
fiscal year. Until the Board acts, the fiscal year shall end on September 30 in
each year.
6.03 Shares in Other Corporations. Shares in other corporations held by the
Corporation may be represented and voted by the chief executive officer or any
person designated by him unless the Board otherwise directs.
6.04 By-Law Amendments; Stockholder Agreements. Subject to the governing
instruments:
(a) By-Laws may be adopted, amended or repealed either by the
stockholders at the time entitled to vote in the election of directors or by the
Board (provided that any change by the Board in the number of directors requires
the vote of a majority of the entire Board). Any By-Law adopted by the Board may
be amended or repealed by the stockholders entitled to vote thereon. If the
Board adopts, amends or repeals any By-Law regulating an impending election of
directors, the notice of the next stockholders meeting for the election of
directors shall set forth such By-Law and a concise statement of the changes
made.
(b) Any written agreement among all of the stockholders of the
Corporation holding votes sufficient to modify, amend or repeal any By-Law,
whether expressly or by interpretation or implication and whether or not the
Corporation is a party thereto, shall be given full force and effect in
accordance with its terms as a stockholders amendment under subsection 6.04(a)
above provided a copy of such written agreement is delivered to the Corporation
and that prompt notice of any such modification, amendment or repeal effected by
any such written agreement to which fewer than all the stockholders of the
Corporation are party is given to those stockholders who are not party thereto.
