<PAGE>
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Exact name of registrant as specified in its charter)
HYPERION TELECOMMUNICATIONS, INC.
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(State of Incorporation) (I.R.S. Employer Identification No.)
DELAWARE 25-1669404
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(Address)
5 WEST THIRD STREET -- P.O. BOX 472, COUDERSPORT, PA 16915
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
If this Form relates to the registration of a class of debt, securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933, pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
CLASS A COMMON STOCK par value $0.01 per share
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
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Incorporated herein by reference is information contained in the
Registrant's Registration Statement on Form S-1 (Registration Statement No. 333-
13663) under the caption "DESCRIPTION OF CAPITAL STOCK".
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<CAPTION>
Item 2. Exhibits.
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<S> <C> <C>
3.1 Amended and Restated Articles of
Incorporation................................ Filed herewith.
3.2 By-laws....................................... Filed herewith.
4.1 Specimen of Class A Common Stock Certificate.. Filed herewith.
</TABLE>
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Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereto duly authorized.
HYPERION TELECOMMUNICATIONS,
INC.
By: /s/ Daniel R. Milliard
----------------------
Name: Daniel R. Milliard
Title: President
Date: October 23, 1996
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HYPERION TELECOMMUNICATIONS, INC.
(Original Certificate of Incorporation filed October 9, 1991)
HYPERION TELECOMMUNICATIONS, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Law"), does hereby certify:
A. That the Board of Directors of the Corporation adopted a resolution
setting forth the Amended and Restated Certificate of Incorporation set forth
below, declaring it advisable and submitting it to the stockholders entitled to
vote in respect thereof for their consideration of such Amended and Restated
Certificate of Incorporation.
B. The holders of a majority of the outstanding stock entitled to vote
thereon voted in favor of the adoption of the Amended and Restated Certificate
of Incorporation as set forth below.
C. That the original Certificate of Incorporation of the Corporation, as
amended, is hereby superseded in its entirety by the Amended and Restated
Certificate of Incorporation set forth below.
D. That the Amended and Restated Certificate of Incorporation of the
Corporation set forth below as been duly adopted in accordance with Sections 242
and 245 of the Law.
ARTICLE I
The name of the corporation is Hyperion Telecommunications, Inc.
ARTICLE II
The address of its registered office in the State of Delaware is 1013
Centre Road, City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Prentice Hall Corporation System, Inc.
ARTICLE III
The nature of the business or purpose to be conducted or promoted is: to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of capital stock of all classes which the
Corporation shall have authority to issue is 455,000,000 shares which shall be
divided as follows: (i) 300,000,000 shares
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of the Class A Common Stock, par value $0.01 per share (the "Class A Common
Stock"); (ii) 150,000,000 shares of the Class B Common Stock, par value $0.01
per share (the "Class B Common Stock") (collectively the Class A Common Stock
and the Class B Common Stock is referred to herein as the "Common Stock"); and
(iii) 5,000,000 shares of the Preferred Stock, par value $0.01 per share (the
"Preferred Stock"). The designations and the powers, preferences, and relative,
participating, optional or other rights of the capital stock and the
qualifications, limitations or restrictions thereof are as follows:
Each share of common stock of the Corporation, par value $0.01 per share,
outstanding immediately prior to the filing of this Amended and Restated
Certificate of Incorporation ("Original Common Stock") shall, upon the filing of
this Amended and Restated Certificate of Incorporation, and without any action
required by the holder be converted into one (1) share of Class B Common Stock.
On or after the date of the filing of this Amended and Restated Certificate of
Incorporation, and in any event within 10 days after receipt of notice, by mail,
postage prepaid from the Corporation of the occurrence of such event, each
holder of record of shares of Original Common Stock shall surrender such
holder's certificates evidencing such shares at the principal office of the
Corporation or at such other place as the Corporation shall designate, and shall
thereupon be entitled to receive certificates representing the number of shares
of Class B Common Stock, as applicable, into which such shares of Original
Common Stock have been converted. Upon the filing of this Amended and Restated
Certificate of Incorporation, each holder of record of Original Common Stock
shall be deemed to be the holder of record of the Class B Common Stock, as
applicable, issuable upon such conversion, notwithstanding that the certificates
representing such shares of Original Common Stock have not been surrendered at
the office of the Corporation, that notice from the corporation shall not have
been received by any holder of record of shares of Original Common Stock, or
that the certificates evidencing such shares of Class B Common Stock, as
applicable, shall not then be actually delivered to such holder.
A. COMMON STOCK PROVISIONS
(1) Voting Rights. Holders of the Class A Common Stock and holders of
--------------
the Class B Common Stock shall have the following voting rights:
(a) Except as required by law, the holders of the Class A Common
Stock and the holders of the Class B Common Stock shall in all matters vote
together as a single class, provided that the holders of shares of the
Class A Common Stock shall have one vote per share and the holders of
shares of the Class B Common Stock shall have ten votes per share. If any
series of Preferred Stock is issued or any new series of capital stock is
authorized in the future, any voting rights granted to such stock shall not
exceed ten votes per share in connection with any matter and will not limit
the voting rights of the Class A Common Stock or the Class B Common Stock.
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(b) There shall be no cumulative voting of any shares of either
class of Common Stock.
(2) Conversion Rights.
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(a) Shares of Class B Common Stock shall be convertible, at the
option of the respective holders thereof, at any time, and from time to
time, into fully paid and nonassessable shares of the Class A Common Stock
on the basis of one share of the Class A Common Stock for each share of the
Class B Common Stock. Any holder of shares of the Class B Common Stock may
elect to convert any or all of such shares at one time or at various times,
in such holder's discretion.
(b) No payment or adjustment with respect to dividends on shares
of the Class A Common Stock or on the Class B Common Stock shall be made in
connection with any conversion of shares of the Class B Common Stock into
shares of Class A Common Stock; provided, however, that if any shares of
the Class B Common Stock shall be converted subsequent to the record date
for the payment of a stock or cash dividend or other distribution on the
shares of the Class B Common Stock but prior to such payment, the stock or
cash dividend or other distribution shall be paid on the Class B Common
Stock to the registered holder of such shares as of the close of business
on the record date as if no conversion has been made.
(c) The holders of a certificate or certificates for the Class B
Common Stock, in order to effect the conversion of shares represented
thereby, shall surrender the certificate or certificates to the corporation
or to the transfer agent for the shares of the Class A Common Stock, with
(i) a written notice to the Corporation stating that such holder elects to
convert such share or shares and stating the name and addresses in which
each certificate for the shares of the Class A Common Stock issued upon
such conversion is to be issued and (ii) any transfer tax stamps or funds
therefor required to be paid in connection with the transfer. If the shares
of the Class A Common Stock issuable upon conversion are to be issued in a
name other than that in which the shares of the Class B Common Stock to be
converted are registered, the certificate or certificates shall be duly
endorsed for the transfer or accompanied by a duly executed stock transfer
power.
Upon the surrender of the certificate or certificates, the Corporation
shall issue and deliver or cause to be issued and delivered to the person
entitled thereto a certificate or certificates for the number of full
shares of the Class A Common Stock issuable upon conversion. The
conversion shall be deemed to have been effected on the date of the
surrender of the certificate or certificates of shares of the Class B
Common Stock, and the person in whose name the certificate or
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certificates of the shares of the Class A Common Stock issuable upon
conversion are to be issued shall be deemed to be the holder of record of
the shares as of that date.
(d) If there should be any capital reorganization or any
reclassification of the Class A Common Stock, the shares of the Class B
Common Stock shall thereafter have the right to be converted into the
number of shares of stock or other securities or property of the
Corporation to which outstanding shares of the Class A Common Stock would
have been entitled upon the effective date of the reorganization or
reclassification. The Board of Directors shall make an appropriate
adjustment in the application of the provision of this paragraph (d) with
respect to the conversion rights of the holders of the shares of the Class
B Common Stock after the reorganization or reclassification, to the end
that the provision shall be applicable, as nearly as reasonably may be, in
respect to any shares or other securities or property thereafter issuable
or deliverable upon the conversion of shares of the Class B Common Stock.
The provision of this paragraph shall not apply to a reorganization or
reclassification involving merely a subdivision or combination of
outstanding shares of the Class A Common Stock, which shall be governed by
paragraph (f) hereof.
(e) The Corporation shall at all times have authorized but
unissued, or in its treasury, a number of shares of the Class A Common
Stock sufficient for the conversion of all shares of the Class B Common
Stock from time to time outstanding.
(f) If the shares of the Class A Common Stock or the Class B
Common Stock at any time outstanding shall, by reclassification or
otherwise, be subdivided into a greater number of shares or combined in to
a lesser number of shares, the shares of the Class B Common Stock or the
Class A Common Stock, respectively, then outstanding shall, at the same
time, be subdivided or combined, as the case may be, on the same basis.
(g) The Corporation covenants that if any shares of the Class A
Common Stock, required to be reserved for purposes of conversion hereunder,
require registration with or approval of any governmental authority under
any federal or state law before such shares may be issued upon conversion,
the corporation will cause such shares to be duly registered or approved.
(3) Dividend Rights. Whenever there shall have been paid, or declared
---------------
and set aside for payment, to the holders of shares of any class of stock
having preference over the Common Stock as to the payment of dividends, the
full amount of dividends and of sinking fund or retirement payments, if
any, to which such
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<PAGE>
holders are respectively entitled in preference to the Common Stock, then
the holders of record of the Class A Common Stock and the Class B Common
Stock, and any class or series of stock entitled to participate therewith
as to dividends, shall be entitled to receive dividends, when, as, and if
declared by the Board of Directors, out of any assets legally available for
the payment of dividends thereon, provided that no dividend may be declared
and paid to the holders of the Class A Common Stock unless at the same time
the Board of Directors shall also declare and pay to the holders of the
Class B Common Stock a per share dividend equal to and, subject to the next
sentence, in the same form as the dividend declared and paid to the holders
of the Class A Common Stock, and vice versa. Common Stock dividends
declared on the Class A Common Stock shall be payable in the Class A Common
Stock; Common Stock dividends declared on the Class B Common Stock shall be
payable in the Class B Common Stock.
(4) Liquidation Rights. In the event of any dissolution, liquidation
------------------
or winding up of the Corporation, whether voluntary or involuntary, the
holders of record of the Class A Common Stock then outstanding and the
holders of record of the Class B Common Stock then outstanding, and all
holders of any class or series of stock entitled to participate therewith,
in whole or in part, as to distribution of assets, shall become entitled to
participate equally on a per share basis in the distribution of any assets
of the Corporation remaining after the Corporation shall have paid or
provided for payment of all debts and liabilities of the Corporation, and
shall have paid, or set aside of repayment, to the holders of any class of
stock having preference over the Common Stock in the event of dissolution,
liquidation or winding up, the full preferential amounts (if any) to which
they are entitled.
B. PREFERRED STOCK PROVISIONS.
The Board of Directors is hereby expressly authorized, at any time or
from time to time, to divide any or all of the shares of the Preferred
Stock into one or more series, and in the resolution or resolutions
establishing a particular series, before issuance of any of the shares
thereof, to fix and determine the number of shares and the designation of
such series, so as to distinguish it from the shares of all other series
and to fix and determine the voting rights (which may be full, limited,
multiple or fractional or none), designations, preferences, qualifications,
privileges, limitations, options, conversion rights, restrictions and other
special or relative rights of the Preferred Stock of such series, to the
fullest extent now or hereafter permitted by the laws of the State of
Delaware; provided, however that neither the terms of the class nor any
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such series shall be established by the Board of Directors without the
approval of the holders of the series of the Preferred Stock then
outstanding, voting separately as a class, if such approval would then be
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required by law to authorize a class or series of stock having such terms,
and until such approval shall have been obtained the class or any such
series of Preferred Stock shall not be deemed to be authorized. The Board
of Directors may in its discretion, at any time or from time to time, issue
or cause to be issued all or any part of the authorized and unissued shares
of the Preferred Stock, issue or cause to be issued all or any part of the
authorized and unissued shares of the Preferred Stock for consideration of
such character and value as the Board of Directors shall from time to time
fix or determine.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director for any act or omission; provided, however, that the
foregoing shall not eliminate or limit the liability of a director (a) for any
breach of the director's duty or loyalty to the Corporation or its stockholders,
(b) for any act or omission not in good faith or which involves intentional
misconduct or a knowing violation of law, (c) under Section 174 of the General
Corporation Law of the State of Delaware, or (d) for any transaction from which
the director derived an improper personal benefit. Any repeal or modification
of this article by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal liability of
a director of the Corporation existing at the time of such repeal or
modification.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by the General
Corporation Law of the State of Delaware, the Board of Directors of the
Corporation is expressly authorized to make, alter, or repeal the Bylaws of the
Corporation.
ARTICLE VIII
Elections of directors need not be by written ballot except and to the
extent provided in the Bylaws of the Corporation.
ARTICLE IX
The certificate of incorporation of the Corporation, as herein amended,
shall constitute a restatement of and shall supersede the Certificate of
Incorporation of the Corporation, as previously amended.
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ARTICLE X
Section 203 of the General Corporation Law of Delaware, as amended, shall
not apply to the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by the undersigned authorized officer
effective as of October 9, 1996.
HYPERION TELECOMMUNICATIONS, INC.
/s/ James P. Rigas
By:_______________________________________
Chief Executive Officer
Title:____________________________________
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<PAGE>
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
of
HYPERION TELECOMMUNICATIONS, INC.
1. Offices
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Hyperion Telecommunications, Inc. (hereinafter the "Corporation") may
have offices and places of business at such places, within or without the State
of Delaware, as the Board of Directors may from time to time determine or the
business of the Corporation may require.
2. Meeting of Stockholders
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2.1 Place of Meetings.
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All meetings of the stockholders for the election of directors shall
be held at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may
be held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver
thereof.
2.2 Annual Meeting.
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Annual meetings of stockholders shall be held in September at date and
time designated by the Board of Directors or at such other date and time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver thereof.
2.3 Special Meetings.
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Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute or by the Certificate of Incorporation,
may be called by the Chief Executive Officer, the President or a majority of the
Board of Directors and shall be called by the President or Secretary at the
request in writing of stockholders owning not less than one-half of the entire
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
<PAGE>
2.4 Notice.
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Written notice of each meeting of stockholders shall be given in the
manner prescribed in Article IV of these Bylaws which shall state the place,
date and hour of the meeting and, in the case of a special meeting, shall state
the purpose or purposes for which the meeting is called. In the case of a
meeting to vote on a proposed merger or consolidation, such notice shall state
the purpose of the meeting and shall contain a copy of the agreement or brief
summary thereof and, in the case of a meeting to vote on a proposed sale, lease
or exchange of all of the Corporation's assets, such notice shall specify that
such a resolution shall be considered. Such notice shall be given to each
stockholder of record entitled to vote at the meeting not less than ten (10) nor
more than sixty (60) days prior to the meeting, except that where the matter to
be acted on is a merger or consolidation of the Corporation or a sale, lease or
exchange of all or substantially all of its assets, such notice shall be given
not less than twenty (20) nor more than sixty (60) days prior to such meeting.
If mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the corporation.
2.5 Business.
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Business transacted at any special meeting of stockholders shall be
limited to the purpose or purposes stated in the notice.
2.6 Quorum and Adjournment.
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Except as otherwise provided by statute or the Certificate of
Incorporation, the holders of a majority of the shares of the Corporation issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall be necessary to and shall constitute a quorum for the
transaction of business at each meeting of stockholders but in no event shall a
quorum consist of less than one-third of the shares entitled to vote at the
meeting. If a quorum shall not be present at the time fixed for any meeting,
the stockholders present, in person or by proxy, and entitled to vote thereat
shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. At such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (30) 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 Voting.
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Unless otherwise provided in the Certificate of Incorporation and
subject to the provisions of Article VI, Section 4 of these Bylaws, each
stockholder shall be entitled to one vote, in person or by proxy, for each share
of capital stock held by such stockholder. If the Certificate of Incorporation
provides for more or less than one vote for any share, on any matter, every
reference
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in these Bylaws to a majority or other proportion of stock shall refer
to such majority or other proportion of the votes of such stock.
2.8 Vote Required.
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When a quorum is present at any meeting, in all matters other than the
election of directors, the vote of the holders of a majority of the shares
present in person or represented by proxy and entitled to vote on the subject
matter shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
Certificate of Incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors.
2.9 Voting Lists.
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The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) 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.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The 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.
2.10 Proxy.
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Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally.
2.11 Consents.
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Any action required or permitted to be taken at any annual or special
meeting of the stockholders may be taken without a meeting, without prior notice
and a vote, if a consent or
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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 to the Corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. Where corporate
action is taken in such manner by less than unanimous written consent, prompt
written notice of the taking of such action shall be given to all stockholders
who have not consented in writing thereto.
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 sixty days of the
earliest dated consent delivered in the manner required by statute to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
3. Directors
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3.1 Board of Directors.
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The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, except as
provided in the Certificate of Incorporation.
3.2 Number; Election and Tenure.
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The number of directors which shall constitute the whole Board shall
be not less than seven (7) nor more than twenty-one (21). Thereafter, within
the limits above specified, the number of directors shall be determined by
resolution of the Board of Directors. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3 of this
Article, and each director elected shall hold office until his successor is
elected and qualified or until his earlier resignation or removal. Any director
may resign at any time upon written notice to the Corporation. Directors need
not be stockholders.
3.3 Vacancies.
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Vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then
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in office, although less than quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify, or until his earlier
resignation or removal. If at any time, by reason of death or resignation or
other cause, the Corporation should have no directors in office, then any
officer or any stockholder or an executor, administrator, trustee or guardian of
a stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of stockholders in
accordance with the provisions of the Certificate of Incorporation or the Bylaws
or may apply to the Court of Chancery for a decree summarily ordering an
election as provided by statute.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
3.4 Meetings.
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The Board of Directors of the Corporation may hold its meetings, and
have an office or offices, within or without the State of Delaware.
3.5 First Meeting.
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The first meeting of each newly elected Board of Directors shall be
held at such time and place as shall be fixed by the vote of the stockholders at
the annual meeting and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected Board of Directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
3.6 Notice.
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Regular meetings of the Board of Directors may be held without notice
at such time and at such place as shall from time to time be determined by the
Board. A special meeting of the Board may be called by the Chief Executive
Officer, President or any Executive Vice President Chairman and a special
meeting shall be called by the President on the written request of two
directors. Notice of each special meeting of the Board of Directors, specifying
the place, day and hour of the meeting, shall be given in the manner prescribed
in Article IV of these Bylaws and in this Section 3.6, either
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personally or by mail, by courier, telecopy, telex or telegram to each director,
at the address or the telex number supplied by the director to the Corporation
for the purpose of notice, at least 24 hours before the time set for the
meeting. Neither the business to be transacted at, nor the purpose of any
meeting of the Board, need be specified in the notice of the meeting.
3.7 Quorum and Voting.
------------------
Except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation, a majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of the majority
of the directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors.
Members of the Board or members of any committee designated by the
Board may participate in meetings 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
such meeting shall constitute presence in person at such meeting.
3.8 Consents.
---------
Unless otherwise restricted by the Certificate of Incorporation, any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
3.9 Committees.
-----------
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more 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 the committee. Any such committee, to the
extent provided in the resolution, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
Bylaws of the Corporation; and, unless the resolution, Bylaws or Certificate of
Incorporation provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. In the absence or
disqualification of any member of such committee or committees, the member or
members
-6-
<PAGE>
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors.
3.10 Committee Rules.
----------------
Unless the Board of Directors otherwise provides, each committee
designated by the Board may adopt, amend and repeal rules for conducting its
business. In the absence of a provision by the Board or a provision in the
rules of a committee to the contrary, a majority of the entire authorized number
of members of such committee shall constitute a quorum for the transaction of
business, the vote of a majority of the members present at a meeting at the time
of such vote if a quorum is then present shall be the act of such committee, and
in other respects each committee shall conduct its business in the same manner
as the Board conducts its business pursuant to this Article III of these Bylaws.
3.11 Committee Minutes.
------------------
Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
3.12 Compensation of Directors.
--------------------------
The directors as such, and as members of any standing or special
committee, may receive such compensation for their services as may be fixed from
time to time by resolution of the Board. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
The directors may be paid their expenses, if any, for attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.13 Removal of Directors.
---------------------
Any director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors.
-7-
<PAGE>
4. Notices
-------
4.1 Form of Notice.
---------------
Whenever, under the provisions of the Delaware General Corporation Law
or of the Certificate of Incorporation or of these Bylaws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by first class or
express mail, addressed to such director or stockholder, at his address as it
appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail, except that, in the case of directors,
notice sent by first class mail shall be deemed to have been given forty-eight
hours after being deposited in the United States mail. Whenever, under these
Bylaws, notice may be given by telegraph, courier or telex, notice shall be
deemed to have been given when deposited with a telegraph office or courier
service for delivery or, in the case of telex, when dispatched.
4.2 Waiver of Notice.
-----------------
Whenever notice is required to be given under any provisions of the
Delaware General Corporation Law or the Certificate of Incorporation or these
Bylaws, a written waiver, signed by the person or persons entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of 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 because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or the Bylaws.
5. Officers
--------
5.1 Selection of Officers.
----------------------
The officers of the Corporation shall be chosen by the directors and
shall consist of a president and secretary, and it may, if it so determines,
elect from among its members a Chairman of the Board and one or more Vice
Chairmen of the Board, who shall have the power of a vice president. The Board
of Directors may also choose a treasurer, one or more executive vice presidents,
one or more vice presidents, one or more assistant secretaries and such other
officers as the Board may deem desirable or appropriate and may give any of them
such further designations or alternate titles as it considers desirable. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide. A failure to elect officers
shall not dissolve or otherwise affect the Corporation.
-8-
<PAGE>
5.2 Term of Office, Removal and Vacancies.
--------------------------------------
Each officer of the Corporation shall hold his office until his
successor is elected and qualifies or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring by death, resignation, removal or otherwise, in any office of
the Corporation, shall be filled by the Board of Directors.
5.3 Compensation.
-------------
The salaries of the officers of the Corporation may be fixed by the
Board of Directors.
5.4 Bond.
-----
The Corporation may secure the fidelity of any or all of its officers
or agents by bond or otherwise.
5.5 Chairman of the Board.
----------------------
The Chairman of the Board shall preside at all meetings of the Board
of Directors and of the stockholders at which he is present and shall have and
may exercise such powers as may, from time to time, be assigned to him by the
Board and as may be provided by law.
5.6 Chief Executive Officer.
------------------------
The Chief Executive Officer shall have primary responsibility for
strategic and long-range planning and direction of the business and finances of
the Corporation, shall oversee the management of the business of the
Corporation, and in addition shall perform all the duties incident to the office
of Chief Executive Officer as may be assigned to such person by the Board of
Directors. He shall have the power to appoint and remove such subordinate
officers and agents other than those actually appointed or elected by the Board
of Directors as the business of the Corporation may require.
5.7 The President.
--------------
The President shall be the Chief Operating Officer of the Corporation,
shall have general and active responsibility for the management of the business
and affairs of the Corporation, shall see that all orders and resolutions of the
Board of Directors are carried into effect and shall perform all such duties as
are assigned to such person by the Board of Directors. He shall have the power
to appoint and remove such subordinate officers and agents other than
-9-
<PAGE>
those actually appointed or elected by the Board of Directors as the business of
the Corporation may require.
5.8 Executive Vice President.
-------------------------
Each Executive Vice President, if any, shall perform such duties as
shall be assigned to him by the Board of Directors or President, and, in the
absence or disability of the President, the most senior in rank of the Executive
Vice Presidents shall perform the duties of the President.
5.9 Vice President.
---------------
Each Vice President, if any, shall perform such duties as shall be
assigned to him by the Board of Directors or President and, to the extent
not so assigned, as generally pertain to such office, subject to the control of
the Board of Directors.
5.10 Secretary.
----------
The Secretary shall attend all meetings of the Board of Directors and
all meetings of the stockholders and record all the proceedings of the meetings
of the Board of Directors and the stockholders in a book to be kept for that
purpose and shall perform like duties for the standing committees when required.
He shall give, or cause to be given, notice of all meetings of the stockholders
and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or President. He shall be
the custodian of the seal of the Corporation and he, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it, and when
so affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature.
5.11 Assistant Secretary.
--------------------
The Assistant Secretary, if any, or assistant secretaries, if more
than one, shall perform the duties of the secretary in his or her absence and
shall perform such other duties as the Board of Directors, the President or the
Secretary may from time to time designate.
5.12 Treasurer.
----------
The Treasurer shall have custody of the corporate funds and securities
and shall keep, or cause to be kept, full and accurate amounts of receipts and
disbursements in books kept for that purpose. He shall deposit all monies, and
other valuable effects, in the name and to the credit of the Corporation, in
such depository as the Board of Directors shall designate. As directed by the
Board of Directors or the President, he shall disburse monies of the
Corporation, taking proper vouchers for such disbursements and shall render to
the President and directors an account
-10-
<PAGE>
of all his transactions as Treasurer and of the financial condition of the
Corporation. In addition, he shall perform all the usual duties incident to the
office of Treasurer.
5.13 Other Officers.
---------------
Any other officers of the Corporation shall have such powers and
duties in managing the Corporation as shall be stated in a resolution of the
Board of Directors which is not inconsistent with these Bylaws and, to the
extent not so stated, as generally pertain to their respective offices, subject
to the control of the Board. The Board of Directors may require any officer,
agent or employee to give security for the faithful performance of his duties.
6. Certificates of Stock and Transfers
-----------------------------------
6.1 Certificates of Stock; Uncertificated Shares.
---------------------------------------------
The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the President or any Vice
President, and countersigned by the Secretary or any Assistant Secretary or the
Treasurer, representing the number of shares registered in certificate form.
Any or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
6.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificate
-------------------------------------------------------------------------
or Uncertificated Shares.
-------------------------
The Board of Directors may issue a new certificate of stock or
uncertificated shares in place of any certificate therefore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or his legal
representative to give the Corporation a bond sufficient to indemnify it against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate or
uncertificated shares.
-11-
<PAGE>
6.3 Record Date.
------------
In order that the Corporation may determine the stockholders entitled
to notice of, or to vote at, any meeting of stockholders or at any adjournment
thereof in respect of which a new record date is not fixed, or to consent to
corporate action without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
date shall not be more than sixty (60) nor less than ten (10) days before the
date of any such meeting, nor more than ten (10) days after the date on which
the date fixing the record date for the consent of stockholders without a
meeting is adopted by the Board of Directors, nor more than sixty (60) days
prior to any other such action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
6.4 Registered Stockholders.
------------------------
The Corporation shall be entitled to recognize the exclusive right of
a person registered on its books as of any record date fixed or determined
pursuant to Section 3 of this Article as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, regardless of whether it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
7. General Provisions
------------------
7.1 Dividends.
----------
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the Corporation's
capital stock, subject to the provisions of the Certificate of Incorporation.
7.2 Liability of Directors as to Dividends or Stock Redemption.
-----------------------------------------------------------
A member of the board of directors, or a member of any committee
designated by the board of directors, shall be fully protected in relying in
good faith upon the records of the Corporation and upon such information,
opinions, reports or statements presented to the Corporation by any of its
officers or employees, or committees of the Board of Directors, or by
-12-
<PAGE>
any other person as to matters the director reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, as to the value and amount
of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid, or with which the Corporation's
stock might properly be purchased or redeemed.
7.3 Reserve for Dividends.
----------------------
Before declaring any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the directors
from time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the
directors shall think conducive to the interest of the Corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
7.4 Annual Statement.
-----------------
The Board of Directors shall present at each annual meeting, and at
any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
7.5 Signing Checks, Notes, etc.
---------------------------
All checks or other orders for the payment of money and all notes or
other instruments evidencing indebtedness of the Corporation shall be signed on
its behalf by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate, or, if not so designated, by
the President or any Vice President of the Company.
7.6 Fiscal Year.
------------
The fiscal year of the Corporation shall end on March 31 of each year
or as otherwise determined by resolution of the Board of Directors.
7.7 Seal.
-----
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
7.8 Voting of Securities of Other Corporations.
-------------------------------------------
In the event that the Corporation shall, at any time or from time to
time, own and have power to vote any securities (including but not limited to
shares of stock or partnership
-13-
<PAGE>
interests) of any other issuer, they shall be voted by such person or persons,
to such extent and in such manner, as may be determined by the Board of
Directors or, if not so determined, by any duly elected officer of the
Corporation.
8. Indemnification
---------------
8.1 Indemnification.
----------------
Except as otherwise provided below, each person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding") and whether or not
by or in the right of the Corporation or otherwise, by reason of the fact that
he or she, or a person of whom he or she is the heir, executor or administrator,
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as director or officer or trustee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director or
officer or trustee, or in any other capacity while serving as a director or
officer or trustee, shall be indemnified and held harmless by the Corporation to
the fullest extent permitted by law, as the same exist or may hereinafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
are permitted the corporation to provide prior to such amendment), against all
reasonable expenses, including attorneys' fees, and any liability and loss,
including judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement, incurred or paid by such person in connection
therewith, and such indemnification shall continue as to a person who has ceased
to be a director or officer or trustee; provided, however, that except as
provided in paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of the final disposition thereof;
provided, however, that to the extent required by the law, the payment of such
expenses incurred by an officer or director in advance of the final disposition
of a proceeding shall be made only upon receipt of an undertaking, by or on
behalf of such person, to repay all amounts so advanced if it shall ultimately
be determined that he or she is not entitled to be indemnified under this
section or otherwise. The right to indemnification and advancement of expenses
provided herein shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
-14-
<PAGE>
8.2 Right to Claimant to Bring Suit.
--------------------------------
If a claim under Section 1 of this Article is not paid in full by the
Corporation within thirty (30) days after a written claim has been received by
the Corporation, the claimant may, at any time thereafter, bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim.
8.3 Non-Exclusivity of Rights.
--------------------------
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of a final disposition conferred in this
Article VIII shall not be exclusive of any other rights to which those seeking
indemnification or advancement of expenses hereunder may be entitled under any
bylaw, agreement, vote of stockholders or directors or otherwise, both as to
action in his official capacity and as to action in any other capacity while
holding that office.
8.4 Funding.
--------
The Corporation may create a fund of any nature, which may, but need
not be, under the control of a trustee, or otherwise secure or insure in any
manner its indemnification obligations, whether arising under or pursuant to
this bylaw or otherwise.
9. Amendments
----------
These Bylaws may be altered, amended or repealed, and new Bylaws may
be adopted, by the stockholders, or by the Board of Directors when such power is
conferred upon the Board of Directors by the Certificate of Incorporation.
Dated: October 8, 1996
-15-
<PAGE>
EXHIBIT 4.1
CLASS A [LOGO OF HYPERION TELECOMMUNICATIONS, INC.] CLASS A
COMMON STOCK COMMON STOCK
NUMBER SHARES
INCORPORATED UNDER THE LAWS SEE REVERSE FOR CERTAIN DEFINITIONS
OF DELAWARE CUSIP 44914K
This Certifies That
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF
CLASS A COMMON STOCK, $.01 PAR VALUE, OF
===================HYPERION TELECOMMUNICATIONS, INC.===========================
transferable on the books of the Corporation in person or by attorney duly
authorized in writing upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall
be held subject to all the provisions of the Corporation's Certificate of
Incorporation and any amendments thereof, copies of which are on file with
the Transfer Agent, to all the provisions of which the holder hereof by
acceptance of this certificate assents.
This certificate is not valid until countersigned by the Transfer Agent
and registered by the Registrar.
WITNESS the facsimile facsimile signatures of its duly authorized officers.
Dated
/s/ James P. Rigas [INSERT SEAL] /s/ Daniel R. Milliard
VICE CHAIRMAN AND CHIEF EXECUTIVE OFFICER PRESIDENT AND SECRETARY
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, New York) TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
HYPERION TELECOMMUNICATIONS, INC.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM- as tenants in common UNIF GIFT MIN ACT- Custodian
---------- ----------
TEN ENT- as tenants by the entireties (Cust) (Minor)
JT TEN- as joint tenants with under Uniform Gifts to Minors
right of survivorship and not
as tenants in common Act
-------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, hereby sell, assign and transfer unto
--------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Shares
- -----------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
---------------------
Attorney to
- ---------------------------------------------------------------------
transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated, X
-------------------- ---------------------------------------------------
X
---------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE
FACE OF THE CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE
WHATEVER.
SIGNATURE GUARANTEE:
---------------------------------------------
