<PAGE>
As filed with the SEC on February 17, 2000
Registration No. 333-83705
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT ON
FORM SB-2
UNDER THE SECURITIES ACT OF 1933
SKYLYNX COMMUNICATIONS, INC.
(Name of Small Business Issuer in Its Charter)
DELAWARE 7375 84-1360029
(State or Other Jurisdiction (Primary Standard (IRS Employer
of Incorporation Industrial Classification Identification No.)
of Organization) Code Number)
600 South Cherry Street,
Suite 400
Denver, CO 80246
(303) 316-0400
(Address and Telephone Number of Principal Executive Offices)
Jeffery A. Mathias
President and Chief Executive Officer
SkyLynx Communications, Inc.
600 South Cherry Street
Suite 400
Denver, CO 80246
(303) 316-0400
(Name, Address and Telephone Number of Agent for Service)
COPIES TO:
Karen A. Dewis, Esq.
McDermott, Will & Emery
600 13th Street, N.W.
Washington, D.C. 20005
(202) 756-8000
Approximate Date of Commencement of Proposed Sale to the Public:
From time to time after the effective date of this registration statement.
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Securities Act"), check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering.[ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[X] Registration No. 333-83705
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box.[ ]
<PAGE>
Item 27 Exhibits
Exhibit No. Title
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2.1 Agreement and Plan of Merger, dated as of December 13, 1999, by
and between SkyLynx Communications, Inc., a Colorado corporation
and SkyLynx Communications, Inc., a Delaware corporation
(incorporated by reference to Exhibit 1.2 to the Company's
Current Report on Form 8-K dated December 14, 1999 and filed with
the SEC on December 20, 1999).
3.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 1.3 to the Company's
Current Report on Form 8-K dated December 14, 1999 and filed with
the SEC on December 20, 1999).
3.2 Bylaws of the Company (filed herewith).
5.1 Opinion of McDermott, Will & Emery (filed herewith).
21.1 Subsidiaries of the Registrant (filed herewith).
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
99.1 Certificate of Assumption of Registration Statement (filed
herewith).
II-1
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this Post-Effective
Amendment No. 1 to registration statement to be signed on its behalf by the
undersigned, in the City of Denver, State of Colorado, on February 17, 2000.
SKYLYNX COMMUNICATIONS, INC.
/s/ Jeffery A. Mathias
----------------------------------------
Jeffery A. Mathias,
President and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each of Messrs. Ridley and Smith
whose signature appears below, constitutes and appoints Jeffery A. Mathias and
James E. Maurer and each of them, as his true and lawful attorneys-in-fact and
agents, with full power of substitution for him in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
In accordance with the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to registration statement was signed by the
following persons in the capacities and on the dates stated.
SIGNATURE TITLE DATE
President, Chief Executive February 17, 2000
Officer (Principal Executive Officer)
/s/Jeffery A. Mathias and Director
- -----------------------
Jeffery A. Mathias
/s/ Francis Ragano* Chairman of the Board February 17, 2000
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Francis Ragano
/s/ J. Samuel Ridley Director February 17, 2000
- -----------------------
J. Samuel Ridley
/s/ Robert J. Smith Director February 17, 2000
- -----------------------
Robert J. Smith
Chief Financial Officer February 17, 2000
(Principal Financial and Accounting
/s/ James E. Maurer Officer) and Director
- -----------------------
James E. Maurer
* By: /s/ James E. Maurer February 17, 2000
----------------------
James E. Maurer
Attorney-in-fact
II-2
<PAGE>
Exhibit 3.2
BYLAWS
OF
SKYLYNX COMMUNICATIONS, INC.
A DELAWARE CORPORATION
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
ARTICLE I CORPORATE OFFICES............................................. 1
1.1 Registered Office............................................. 1
1.2 Other Offices................................................. 1
ARTICLE II MEETINGS OF STOCKHOLDERS..................................... 1
2.1 Place of Meetings............................................. 1
2.2 Annual Meetings............................................... 1
2.3 Special Meetings.............................................. 1
2.4 Notice of Stockholders' Meetings.............................. 2
2.5 Manner of Giving Notice; Affidavit of Notice.................. 2
2.6 Quorum........................................................ 2
2.7 Adjourned Meeting; Notice..................................... 2
2.8 Conduct of Business........................................... 2
2.9 Voting........................................................ 3
2.10 Waiver of Notice.............................................. 3
2.11 Stockholder Action by Written Consent Without a Meeting....... 3
2.12 Record Date for Stockholder Notice; Voting; Giving Consents... 4
2.13 Proxies....................................................... 4
2.14 List of Stockholders Entitled to Vote......................... 5
ARTICLE III DIRECTORS................................................... 5
3.1 Powers........................................................ 5
3.2 Number of Directors........................................... 5
3.3 Election, Qualification and Term of Office of Directors....... 5
3.4 Resignation and Vacancies..................................... 5
3.5 Place of Meetings; Meetings by Telephone...................... 6
3.6 Regular Meetings.............................................. 7
3.7 Special Meetings; Notice...................................... 7
3.8 Quorum........................................................ 7
3.9 Waiver of Notice.............................................. 7
3.10 Board Action by Written Consent Without a Meeting............. 8
3.11 Fees and Compensation of Directors............................ 8
</TABLE>
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TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
<S> <C>
3.12 Approval of Loans to Officers................................. 8
3.13 Removal of Directors.......................................... 8
ARTICLE IV COMMITTEES................................................... 8
4.1 Committees of Directors....................................... 8
4.2 Committee Minutes............................................. 9
4.3 Meetings and Action of Committees............................. 9
ARTICLE V OFFICERS...................................................... 9
5.1 Officers...................................................... 9
5.2 Appointment of Officers....................................... 10
5.3 Subordinate Officers.......................................... 10
5.4 Removal and Resignation of Officers........................... 10
5.5 Vacancies in Offices.......................................... 10
5.6 Chairman of the Board......................................... 10
5.7 President..................................................... 10
5.8 Vice Presidents............................................... 11
5.9 Secretary..................................................... 11
5.10 Chief Financial Officer....................................... 11
5.11 Chief Scientific Officer...................................... 12
5.12 Assistant Secretary........................................... 12
5.13 Assistant Treasurer........................................... 12
5.14 Representation of Shares of Other Corporations................ 12
5.15 Authority and Duties of Officers.............................. 12
ARTICLE VI INDEMNITY.................................................... 13
6.1 Third Party Actions........................................... 13
6.2 Actions by or in the Right of the Corporation................. 13
6.3 Successful Defense............................................ 14
6.4 Determination of Conduct...................................... 14
6.5 Payment of Expenses in Advance................................ 14
6.6 Indemnity Not Exclusive....................................... 14
6.7 Insurance Indemnification..................................... 14
</TABLE>
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TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
<S> <C>
6.8 The Corporation............................................... 15
6.9 Employee Benefit Plans........................................ 15
6.10 Indemnity Fund................................................ 15
6.11 Indemnification of Other Persons.............................. 15
6.12 Savings Clause................................................ 15
6.13 Continuation of Indemnification and Advancement of Expenses... 16
ARTICLE VII RECORDS AND REPORTS......................................... 16
7.1 Maintenance and Inspection of Records......................... 16
7.2 Inspection by Directors....................................... 17
7.3 Annual Statement to Stockholders.............................. 17
ARTICLE VIII GENERAL MATTERS............................................ 17
8.1 Checks........................................................ 17
8.2 Execution of Corporate Contracts and Instruments.............. 17
8.3 Stock Certificates; Partly Paid Shares........................ 17
8.4 Special Designation on Certificates........................... 18
8.5 Lost Certificates............................................. 18
8.6 Construction; Definitions..................................... 18
8.7 Dividends..................................................... 19
8.8 Fiscal Year................................................... 19
8.9 Seal.......................................................... 19
8.10 Transfer of Stock............................................. 19
8.11 Stock Transfer Agreements..................................... 19
8.12 Registered Stockholders....................................... 19
ARTICLE IX AMENDMENTS................................................... 19
</TABLE>
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<PAGE>
BYLAWS
OF
SKYLYNX COMMUNICATIONS, INC.
A DELAWARE CORPORATION
ARTICLE I
CORPORATE OFFICES
1.1 Registered Office. The registered office of the corporation shall
be in the City of Dover, County of Kent, State of Delaware. The name of the
registered agent of the corporation at such location is Incorporating Services,
Ltd.
1.2 Other Offices. The board of directors may at any time establish
other offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held at any
place, within or outside the State of Delaware, designated by the board of
directors. In the absence of any such designation, stockholders' meetings shall
be held at the registered office of the corporation.
2.2 Annual Meetings. The annual meeting of stockholders shall be held
each year on a date and at a time designated by the board of directors. At the
meeting, directors shall be elected and any other proper business may be
transacted.
2.3 Special Meetings. A special meeting of the stockholders may be
called at any time by the board of directors, or by the chairman of the board,
or by the president, or by one or more stockholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at that
meeting.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president or the
secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The officer receiving the
request shall cause notice to be promptly given to the stockholders entitled to
vote, in accordance with the provisions of
<PAGE>
Sections 2.4 and 2.5 of this Article II, that a meeting will be held at the time
requested by the person or persons who called the meeting, not less than thirty-
five (35) nor more than sixty (60) days after the receipt of the request. If the
notice is not given within twenty (20) days after the receipt of the request,
the person or persons requesting the meeting may give the notice. Nothing
contained in this paragraph of this Section 2.3 shall be construed as limiting,
fixing, or affecting the time when a meeting of stockholders called by action of
the board of directors may be held.
2.4 Notice of Stockholders' Meetings. All notices of meetings of
stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting. The notice shall specify 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.
2.5 Manner of Giving Notice; Affidavit of Notice. Written notice of
any meeting of stockholders, if mailed, 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. An affidavit of the secretary or an
assistant secretary or of the transfer agent of the corporation that the notice
has been given shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
2.6 Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting as originally noticed.
2.7 Adjourned Meeting; Notice. When a meeting is adjourned to another
time or place, unless these bylaws otherwise require, 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. At the adjourned meeting the
corporation may transact any business that might have been transacted at the
original meeting. 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.
2.8 Conduct of Business. The chairman of any meeting of stockholders
shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of business.
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2.9 Voting. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.12 of these bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and other voting
agreements).
Except as provided in the last paragraph of this Section 2.9, or as
may be otherwise provided in the certificate of incorporation, each stockholder
shall be entitled to one vote for each share of capital stock held by such
stockholder.
At a stockholders' meeting at which directors are to be elected, each
stockholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of votes which such stockholder normally
is entitled to cast) if the candidates' names have been properly placed in
nomination (in accordance with these bylaws) prior to commencement of the voting
and the stockholder requesting cumulative voting or any other stockholder voting
at the meeting in person or by proxy has given notice prior to commencement of
the voting of the stockholders' intention to cumulate votes. If cumulative
voting is properly requested, each holder of stock, or of any class or classes
or of a series or series thereof, who elects to cumulate votes shall be entitled
to as many votes as equals the number of votes which (absent this provision as
to cumulative voting) he would be entitled to cast for the election of directors
with respect to his shares of stock multiplied by the number of directors to be
elected by him, and he may cast all of such votes for a single director or may
distribute them among the number to be voted for, or for any two or more of
them, as he may see fit.
2.10 Waiver of Notice. Whenever notice is required to be given under
any provision of the General Corporation Law of Delaware or of the certificate
of incorporation or these bylaws, a written waiver thereof, signed by the person
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 need be specified in any written
waiver of notice unless so required by the certificate of incorporation or these
bylaws.
2.11 Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the certificate of incorporation, any action required by
this article to be taken at any annual or special meeting of stockholders of the
corporation, or any action that may be taken at any annual or special meeting of
such stockholders, may be taken without a meeting, without prior notice, and
without a vote if a consent in writing, setting forth the action so taken, is
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.
3
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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. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.12 Record Date for Stockholder Notice; Voting; Giving Consents. In
order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing 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, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
(i) 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.
(ii) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, shall be the day on which the
first written consent is expressed.
(iii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
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.
2.13 Proxies. 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 a
written proxy, signed by the stockholder and filed with the secretary of the
corporation, 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 proxy
shall be deemed signed if the stockholder's name
4
<PAGE>
is placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the stockholder or the stockholder's attorney-in-
fact. The revocability of a proxy that states on its face that it is irrevocable
shall be governed by the provisions of Section 212(c) of the General Corporation
Law of Delaware.
2.14 List of Stockholders Entitled to Vote. 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. Such list shall presumptively determine the identify
of the stockholders entitled to vote at the meeting and the number of shares
held by each of them.
ARTICLE III
DIRECTORS
3.1 Powers. Subject to the provisions of the General Corporation Law
of Delaware and any limitation in the certificate of incorporation or these
bylaws relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
3.2 Number of Directors. The board of directors shall consist of not
less than one (1) and not more than ten (10) persons until changed by a proper
amendment of this Section 3.2.
3.3 Election, Qualification and Term of Office of Directors. Except
as provided in Section 3.4 of these bylaws, directors shall be elected at each
annual meeting of stockholders to hold office until the next annual meeting.
Directors need not be stockholders unless so required by the certificate of
incorporation or these bylaws, wherein other qualifications for directors may be
prescribed. Each director, including a director elected to fill a vacancy, shall
hold office until his successor is elected and qualified or until his earlier
resignation or removal.
Elections of directors need not be by written ballot.
3.4 Resignation and Vacancies. Any director may resign at any time
upon written notice to the attention of the secretary of the corporation. When
one or more directors so resigns and the resignation is effective at a future
date, a majority of
5
<PAGE>
the directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each director so
chosen shall hold office as provided in this section in the filling of other
vacancies.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
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 any executor, administrator, trust 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 these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) 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 as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 Place of Meetings; Meetings by Telephone. The board of directors
of the corporation may hold meetings, both regular and special, either within or
outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or
these bylaws, members of the board of directors, or any committee designated by
the board of directors, may participate in a meeting of the board of directors,
or any committee, by means of conference telephone or similar communications
equipment by means of
6
<PAGE>
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
3.6 Regular Meetings. 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.
3.7 Special Meetings; Notice. Special meetings of the board of
directors for any purpose or purposes may be called at any time by the chairman
of the board, the president, any vice president, the secretary or any two (2)
directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
facsimile, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the corporation. If the notice is
mailed, it shall be deposited in the United States mail at least four (4) days
before the time of the holding of the meeting. If the notice is delivered
personally or by telephone or by facsimile, it shall be delivered personally or
by telephone or to the facsimile telephone number at least forty-eight (48)
hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. The notice need not
specify the purpose or the place of the meeting, if the meeting is to be held at
the principal executive office of the corporation.
3.8 Quorum. At all meetings of the board of directors, a majority of
the authorized number of directors shall constitute a quorum for the transaction
of business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.9 Waiver of Notice. Whenever notice is required to be given under
any provision of the General Corporation Law of Delaware or of the certificate
of incorporation or these bylaws, a written waiver thereof, signed by the person
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 other purpose of, any
regular or special meeting of the directors, or members of
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<PAGE>
a committee of directors, need be specified in any written waiver of notice
unless so required by the certificate of incorporation or these bylaws.
3.10 Board Action by Written Consent Without a Meeting. Unless
otherwise restricted by the certificate of incorporation or these bylaws, any
action required or permitted to be taken at any meeting of the board of
directors, or of any committee thereof, may be taken without a meeting if all
members of the board 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.
3.11 Fees and Compensation of Directors. Unless otherwise restricted
by the certificate of incorporation or these bylaws, the board of directors
shall have the authority to fix the compensation of directors.
3.12 Approval of Loans to Officers. The corporation may lend money
to, or guarantee any obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiaries, including any officer or
employee who is a director of the corporation or its subsidiaries, whenever, in
the judgment of the directors, such loan, guaranty or assistance may reasonably
be expected to benefit the corporation. The loan, guaranty or other assistance
may be with or without interest and may be unsecured, or secured in such manner
as the board of directors shall approve, including, without limitation, a pledge
of shares of stock of the corporation. Nothing contained in this section shall
be deemed to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.13 Removal of Directors. Unless otherwise restricted by statute,
by the certificate of incorporation or by these bylaws, 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;
provided, however, that, so long as shareholders of the corporation are entitled
to cumulative voting, if less than the entire board is to be removed, no
director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if then cumulatively voted at an election of
the entire board of directors.
ARTICLE IV
COMMITTEES
4.1 Committees of Directors. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, with 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 the committee. In the absence or disqualification of a member of
a committee, the member or members 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.
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Any such committee, to the extent provided in the resolution of the board of
directors or in the bylaws of the corporation, 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 that may require it; but no such
committee shall have the power or authority to (i) amend the certificate of
incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of the General
Corporation Law of Delaware, fix the designation and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the corporation or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), (ii) adopt an agreement of merger or
consolidation under Sections 251 or 252 of the General Corporation Law of
Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, (iv) recommend to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or (v) amend the bylaws of the corporation; and, unless the board
resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 Committee Minutes. Each committee shall keep regular minutes of
its meetings and report the same to the board of directors when required.
4.3 Meetings and Action of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these bylaws, Section 3.5 (place of meetings and
meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and
Section 3.10 (action without a meeting), with such changes in the context of
those bylaws as are necessary to substitute the committee and its members for
the board of directors and its members; provided, however, that the time of
regular meetings of committees may be determined either by resolution of the
board of directors or by resolution of the committee, that special meetings of
committees may also be called by resolution of the board of directors and that
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any committee not
inconsistent with the provisions of these bylaws.
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ARTICLE V
OFFICERS
5.1 Officers. The officers of the corporation shall be a president, a
secretary, and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice
presidents, one or more assistant vice presidents, one or more assistant
secretaries, and one or more assistant treasurers, and any such other officers
as may be appointed in accordance with the provisions of Section 5.3 of these
bylaws. Any number of offices may be held by the same person.
5.2 Appointment of Officers. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Sections
5.3 or 5.5 of these bylaws, shall be appointed by the board of directors,
subject to the rights, if any, of an officer under any contract of employment.
5.3 Subordinate Officers. The board of directors may appoint, or
empower the president to appoint, such other officers and agents as the business
of the corporation may require, each of whom shall hold office for such period,
have such authority, and perform such duties as are provided in these bylaws or
as the board of directors may from time to time determine.
5.4 Removal and Resignation of Officers. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by an affirmative vote of the majority of the
board of directors at any regular or special meeting of the board or, except in
the case of an officer chosen by the board of directors, by any officer upon
whom such power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 Vacancies in Offices. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
5.6 Chairman of the Board. The chairman of the board, if such an
officer be elected, shall, if present, preside at meetings of the board of
directors and exercise and perform such other powers and duties as may from time
to time be assigned to him by the board of directors or as may be prescribed by
these bylaws. If there is no president, then the chairman of the board shall
also be the chief executive officer of the corporation and shall have the powers
and duties prescribed in Section 5.7 of these bylaws.
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5.7 President. Subject to such supervisory powers, if any, as may be
given by the board of directors to the chairman of the board, if there be such
an officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction, and control of the business and the officers of
the corporation. He shall preside at all meetings of the stockholders and, in
the absence or nonexistence of a chairman of the board, at all meetings of the
board of directors. He shall have the general powers and duties of management
usually vested in the office of president of a corporation and shall have such
other powers and duties as may be prescribed by the board of directors or these
bylaws.
5.8 Vice Presidents. In the absence or disability of the president,
the vice presidents, if any, in order of their rank as fixed by the board of
directors or, if not ranked, a vice president designated by the board of
directors, shall perform all the duties of the president and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors, these bylaws, the president or the chairman of the board.
5.9 Secretary. The secretary shall keep or cause to be kept, at the
principal executive office of the corporation or such other place as the board
of directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall show the
time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be given by law or
by these bylaws. He shall keep the seal of the corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by these bylaws.
5.10 Chief Financial Officer. The chief financial officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital retained
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earnings, and shares. The books of account shall at all reasonable times be open
to inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. He shall disburse
the funds of the corporation as may be ordered by the board of directors, shall
render to the president and directors, whenever they request it, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation, and shall have other powers and perform such other duties as
may be prescribed by the board of directors or these bylaws.
The chief financial officer shall be the treasurer of the corporation.
5.11 Chief Technology Officer. The Chief Technology Officer shall,
subject to the direction and control of the board of directors, be responsible
for all technological aspects of the Corporation's business including the
design, research, development, review and implementation of technologies. The
Chief Technology Officer shall be elected each year by the board of directors,
to serve until his or her successor is duly elected by the board of directors.
5.12 Assistant Secretary. The assistant secretary, or, if there is
more than one, the assistant secretaries in the order determined by the
stockholders or board of directors (or if there be no such determination, then
in the order of their election) shall, in the absence of the secretary or in the
event of his or her inability or refusal to act, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as may be prescribed by the board of directors or these bylaws.
5.13 Assistant Treasurer. The assistant treasurer, or, if there is
more than one, the assistant treasurers, in the order determined by the
stockholders or board of directors (or if there be no such determination, then
in the order of their election), shall, in the absence of the chief financial
officer or in the event of his or her inability or refusal to act, perform the
duties and exercise the powers of the chief financial officer and shall perform
such other duties and have such other powers as may be prescribed by the board
of directors or these bylaws.
5.14 Representation of Shares of Other Corporations. The chairman of
the board, the president, any vice president, the chief financial officer, the
secretary or assistant secretary of this corporation, or any other person
authorized by the board of directors or the president or a vice president, is
authorized to vote, represent, and exercise on behalf of this corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority granted herein may be
exercised either by such person directly or by any other person authorized to do
so by proxy or power of attorney duly executed by such person having the
authority.
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5.15 Authority and Duties of Officers. In addition to the foregoing
authority and duties, all officers of the corporation shall respectively have
such authority and perform such duties in the management of the business of the
corporation as may be designated from time to time by the board of directors or
the stockholders.
ARTICLE VI
INDEMNITY
6.1 Third Party Actions. Subject to the provisions of this Article
VI, the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in advance by the
corporation, which approval shall not be unreasonably withheld) actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
6.2 Actions by or in the Right of the Corporation. Subject to the
provisions of this Article VI, the corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
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Notwithstanding any other provision of this Article VI, no person shall be
indemnified hereunder for any expenses or amounts paid in settlement with
respect to any action to recover short-swing profits under Section 16(b) of the
Securities Exchange Act of 1934, as amended.
6.3 Successful Defense. To the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections
6.1 and 6.2, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
6.4 Determination of Conduct. Any indemnification under Sections 6.1
and 6.2 (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that the indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Sections 6.1 and 6.2.
Such determination shall be made (i) by the Board of Directors or the Executive
Committee by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding or (ii) if such quorum is not
obtainable or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders. Notwithstanding the foregoing, a director, officer, employee or
agent of the corporation shall be entitled to contest any determination that the
director, officer, employee or agent has not met the applicable standard of
conduct set forth in Sections 6.1 and 6.2 by petitioning a court of competent
jurisdiction.
6.5 Payment of Expenses in Advance. Expenses incurred in defending a
civil or criminal action, suit or proceeding, by an individual who may be
entitled to indemnification pursuant to Section 6.1 or 6.2, shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this Article VI.
6.6 Indemnity Not Exclusive. The indemnification and advancement of
expenses provided by or granted pursuant to the other sections of this Article
VI shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
6.7 Insurance Indemnification. The corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such,
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whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article VI.
6.8 The Corporation. For purposes of this Article VI, references to
the "corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors and officers, so that
any person who is or was a director, officer, employ or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under and subject to the provisions of this Article VI (including,
without limitation, the provisions of Section 6.4) with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
6.9 Employee Benefit Plans. For purposes of this Article VI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article VI.
6.10 Indemnity Fund. Upon resolution passed by the Board, the
corporation may establish a trust or other designated account, grant a security
interest or use other means (including, without limitation, a letter of credit),
to ensure the payment of certain of its obligations arising under this Article
VI and/or agreements which may be entered into between the corporation and its
officers and directors from time to time.
6.11 Indemnification of Other Persons. The provisions of this Article
VI shall not be deemed to preclude the indemnification of any person who is not
a director or officer of the corporation or is not serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, but whom the corporation
has the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware or otherwise. The corporation may, in
its sole discretion, indemnify an employee, trustee or other agent as permitted
by the General Corporation Law of the State of Delaware. The corporation shall
indemnify an employee, trustee or other agent where required by law.
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6.12 Savings Clause. If this Article VI or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each person entitled to indemnification
hereunder against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement with respect to any action, suit, proceeding or
investigation, whether civil, criminal or administrative, and whether internal
or external, including a grand jury proceeding and an action or suit brought by
or in the right of the corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated, or by
any other applicable law.
6.13 Continuation of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VI shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE VII
RECORDS AND REPORTS
7.1 Maintenance and Inspection of Records. The corporation shall,
either at its principal executive office or at such place or places as
designated by the board of directors, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date, accounting books, and
other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent in the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent so to act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
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, 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
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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.
7.2 Inspection by Directors. Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought. The Court
may summarily order the corporation to permit the director to inspect any and
all books and records, the stock ledger, and the stock list and to make copies
or extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
7.3 Annual Statement to Stockholders. 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.
ARTICLE VIII
GENERAL MATTERS
8.1 Checks. From time to time, the board of directors shall
determine by resolution which person or persons may sign or endorse all checks,
drafts, other orders for payment of money, notes or other evidences of
indebtedness that are issued in the name of or payable to the corporation, and
only the persons so authorized shall sign or endorse those instruments.
8.2 Execution of Corporate Contracts and Instruments. The board of
directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.3 Stock Certificates; Partly Paid Shares. The shares of the
corporation shall be represented by certificates, provided that the board of
directors of the corporation 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 chairman or vice-chairman of the board of
directors, or
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the president or vice president, and by the chief financial officer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation representing the number of shares registered in certificate form.
Any or all of 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 has 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.
The corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the consideration to be
paid therefor. Upon the face or back of each stock certificate issued to
represent any such partly paid shares, upon the books and records of the
corporation in the case of uncertificated partly paid shares, the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated. Upon the declaration of any dividend on fully paid shares, the
corporation shall declare a dividend upon partly paid shares of the same class,
but only upon the basis of the percentage of the consideration actually paid
thereon.
8.4 Special Designation on Certificates. If the corporation is
authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face of back of
the certificate that the corporation shall issue to represent such class or
series of stock; provided, however, that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
8.5 Lost Certificates. Except as provided in this Section 8.5, no
new certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation and cancelled at
the same time. The corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore 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.
8.6 Construction; Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
Delaware General
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Corporation Law shall govern the construction of these bylaws. Without limiting
the generality of this provision, the singular number includes the plural, the
plural number includes the singular, and the term "person" includes both a
corporation and a natural person.
8.7 Dividends. The directors of the corporation, subject to any
restrictions contained in (i) the General Corporation Law of Delaware or (ii)
the corporation's certificate of incorporation, may declare and pay dividends
upon the shares of its capital stock. Dividends may be paid in cash, in
property, or in shares of the corporation's capital stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not
be limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
8.8 Fiscal Year. The fiscal year of the corporation shall be fixed
by resolution of the board of directors and may be changed by the board of
directors.
8.9 Seal. The corporation may adopt a corporate seal, which shall be
adopted and which may be altered by the board of directors, and may use the same
by causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
8.10 Transfer of Stock. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction in its books.
8.11 Stock Transfer Agreements. The corporation shall have power to
enter into and perform any agreement with any number of stockholders of any one
or more classes of stock of the corporation to restrict the transfer of shares
of stock of the corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the General Corporation Law of
Delaware.
8.12 Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, shall be entitled to
hold liable for calls and assessments the 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 another person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
19
<PAGE>
ARTICLE IX
AMENDMENTS
The bylaws of the corporation may be adopted, amended or repealed by
the stockholders entitled to vote; provided, however, that the corporation may,
in its certificate of incorporation, confer the power to adopt, amend or repeal
bylaws upon the directors. The fact that such power has been so conferred upon
the directors shall not divest the stockholders of the power, nor limit their
power to adopt, amend or repeal bylaws.
20
<PAGE>
CERTIFICATE OF ADOPTION OF BYLAWS
OF
SKYLYNX COMMUNICATIONS, INC.
A DELAWARE CORPORATION
Certificate by Secretary of Adoption by Board of Directors
The undersigned hereby certifies that he is the duly elected,
qualified, and acting Secretary of SkyLynx Communications, Inc., a Delaware
Corporation and that the foregoing bylaws, comprising twenty-one (21) pages,
including this page, were adopted as the Bylaws of the corporation as of
November ___, 1999, by the Board of Directors of the corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and, if
available, affixed the corporate seal, as of the ___ day of November, 1999.
________________________________________
Ned Abell, Secretary
21
<PAGE>
February 17, 2000
SkyLynx Communications, Inc.
600 Cherry Street, Suite 400
Denver, CO 80246
Re: Post-Effective Amendment No. 1 to Registration Statement on Form SB-2
(Registration No. 333-83705)
Ladies and Gentlemen:
This opinion is furnished to you in connection with the above-referenced
Post-Effective Amendment No. 1 (the "Post-Effective Amendment No. 1") to
Registration Statement on Form SB-2 (Registration No. 333-83705) (as amended,
the "Registration Statement"), for registration under the Securities Act of
1933, as amended, of an aggregate of 9,996,954 shares of Common Stock, $0.001
par value (the "Common Stock") of SkyLynx Communications, Inc., a Delaware
corporation (the "Company") for resale by certain selling security holders
listed in the Registration Statement (the "Selling Security Holders") who held
and/or hold shares of the Company's Series B Convertible Preferred Stock, Series
D Convertible Preferred Stock, Series E Convertible Preferred Stock
(collectively, the "Preferred Stock") and/or warrants to purchase shares of the
Common Stock issued in connection with the sale of Preferred Stock (the
"Warrants").
We have examined and relied, to the extent we deemed proper, on
certificates of officers of the Company as to factual matters, on the originals
or copies certified or otherwise identified to our satisfaction of all such
corporate records of the Company and such other instruments and certificates of
public officials and other persons as we have deemed appropriate. In our
examination, we have assumed the authenticity of all documents submitted to us
as originals, the conformity to the original documents of all documents
submitted to as copies, and the genuineness of all signatures on documents
reviewed by us and the legal capacity of natural persons.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock registered under the Registration Statement which are
issued and outstanding on this date are lawfully and validly issued, fully paid
and non-assessable. In addition, we are of the opinion that, upon the lawful
conversion of outstanding shares of Preferred Stock and/or the exercise of
outstanding Warrants in accordance with all legal requirements, the shares of
Common Stock issuable upon the conversion of such Preferred Stock or the
exercise or such Warrants will be validly issued, fully paid and non-assessable.
We hereby consent to (a) the filing of the foregoing legal opinion as an
exhibit to the Registration Statement and (b) all references to our firm in the
Registration Statement.
Very truly yours,
/s/ McDermott, Will & Emery
McDermott, Will & Emery
<PAGE>
EX 21.1
Subsidiaries
------------
<TABLE>
<CAPTION>
Subsidiary Jurisdiction of
---------- ---------------
Incorporation
-------------
- ---------------------------------------------------------------------------
<S> <C>
- ---------------------------------------------------------------------------
SkyLynx Communications (Tampa), Inc. Florida
- ---------------------------------------------------------------------------
SkyLynx Communications (Sarasota), Inc. Florida
- ---------------------------------------------------------------------------
SkyLynx Communications (Fresno), Inc. California
- ---------------------------------------------------------------------------
SkyLynx Communications of Oregon, Inc. Oregon
- ---------------------------------------------------------------------------
SkyLynx Communications of Washington, Inc. Washington
- ---------------------------------------------------------------------------
SkyLynx Communications of California, Inc. California
- ---------------------------------------------------------------------------
SkyLynx.net, Inc. Delaware
- ---------------------------------------------------------------------------
SkyLynx.com, Inc. Delaware
- ---------------------------------------------------------------------------
SkyLynx Communications of Pacific Northwest, Inc. Delaware
- ---------------------------------------------------------------------------
SkyLynx Communications MST, Inc. Delaware
- ---------------------------------------------------------------------------
SkyLynx Communications of California, Inc. Delaware
- ---------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 99.1
CERTIFICATE OF ASSUMPTION OF REGISTRATION STATEMENT
The Post-Effective Amendment No.1 (the "Post-Effective Amendment No. 1") to
Registration Statement on Form SB-2 (Registration No. 333-83705) (the
"Registration Statement"), to which this Statement is an Exhibit, is being filed
pursuant to Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act") by SkyLynx Communications, Inc., a Delaware corporation
("SkyLynx Delaware"), which is the successor to SkyLynx Communications, Inc., a
Colorado corporation ("SkyLynx Colorado"), following a statutory merger
effective December 14, 1999 (the "Merger") for the purpose of changing SkyLynx
Colorado's state of incorporation. Prior to the Merger, SkyLynx Delaware had no
assets or liabilities other than nominal assets or liabilities. In connection
with the Merger, SkyLynx Delaware succeeded by operation of law to all of the
assets and liabilities of SkyLynx Colorado. The Merger was approved by the
shareholders of SkyLynx Colorado at a meeting for which proxies were solicited
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Pursuant to the Merger, all of the issued and outstanding
securities of SkyLynx Colorado immediately prior to the effective time of the
Merger, including issued and outstanding shares of SkyLynx Colorado's Common
Stock, par value $.001 per share, Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock, Series D
Convertible Preferred Stock and Series E Convertible Preferred Stock were
automatically converted into an equal number of shares of Common Stock, Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C
Convertible Preferred Stock, Series D Convertible Preferred Stock and Series E
Convertible Preferred Stock of SkyLynx Delaware. Further, all outstanding
options, warrants and other stock purchase rights of SkyLynx Colorado were
assumed by SkyLynx Delaware and became the obligation of SkyLynx Delaware
without modification or interruption.
Except as modified by Post-Effective Amendment No. 1, SkyLynx Delaware, by
virtue of this Amendment, expressly adopts the Registration Statement as its own
registration statement for all purposes of the Securities Act and the Exchange
Act.
By: /s/ Jeffery A. Mathias
------------------------------
Jeffery A. Mathias
President and Chief Executive Officer
February 17, 2000
