MILLENNIUM NETWORK TECHNOLOGIES, INC.
(A Delaware Company)
BY-LAWS
TABLE OF CONTENTS
ARTICLE 1
STOCKHOLDERS
1
Section 1.1 ANNUAL MEETINGS
1
Section 1.2 SPECIAL MEETINGS
1
Section 1.3 NOTICE OF MEETINGS
1
Section 1.4 BUSINESS TRANSACTED AT SPECIAL MEETINGS OF STOCKHOLDERS
1
Section 1.5 QUORUM
1
Section 1.6 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING
2
Section 1.7 APPROVAL OR RATIFICATION BY STOCKHOLDERS
2
ARTICLE 2
BOARD OF DIRECTORS
2
Section 2.1 GENERAL POWERS
2
Section 2.2 NUMBER AND TERM OF OFFICE
2
Section 2.3 ELECTION OF DIRECTORS
2
Section 2.4 ANNUAL AND REGULAR MEETINGS
3
Section 2.5 SPECIAL MEETINGS; NOTICE
3
Section 2.6 QUORUM
3
Section 2.7 TELEPHONE MEETINGS; ACTION WITHOUT A MEETING
3
Section 2.8 RESIGNATIONS
4
Section 2.9 REMOVAL OF DIRECTORS
4
Section 2. 10 VACANCIES AND NEWLY CREATED DIRECTORSHIPS
4
Section 2.11 COMPENSATION
4
ARTICLE 3
COMMITTEES
4
Section 3.1 HOW CONSTITUTED
4
Section 3.2 POWERS
5
Section 3.3 PROCEEDINGS
5
Section 3.4 QUORUM AND MANNER OF ACTING; TELEPHONE MEETINGS
5
Section 3.5 RESIGNATION
5
Section 3.6 REMOVAL
5
Section 3.7 VACANCIES
5
ARTICLE 4
OFFICERS
6
Section 4.1 NUMBER
6
Section 4.2 ELECTION
6
Section 4.3 ADDITIONAL OFFICERS
6
Section 4.4 SALARIES
6
Section 4.5 RESIGNATIONS
6
Section 4.6 REMOVAL AND VACANCIES
6
Section 4.7 DUTIES OF THE PRESIDENT
6
Section 4.8 DUTIES OF THE VICE-PRESIDENT
7
Section 4.9 DUTIES OF THE SECRETARY
7
Section 4.10 DUTIES OF THE CONTROLLER
7
Section 4.11 EMPLOYEE BONDS
7
ARTICLE 5
CAPITAL STOCK
8
Section 5.1 CERTIFICATES OF STOCK
8
Section 5.2 SIGNATURES
8
Section 5.3 LOST, STOLEN OR DESTROYED CERTIFICATES
8
Section 5.4 TRANSFER OF STOCK
8
Section 5.5 RECORD DATE
8
Section 5.6 REGISTERED STOCKHOLDERS
9
ARTICLE 6
INDEMNIFICATION
9
Section 6.1 ACTIONS AGAINST OFFICERS AND DIRECTORS
9
Section 6.2 INSURANCE
9
ARTICLE 7
GENERAL PROVISIONS
9
Section 7.1 DIVIDENDS
9
Section 7.2 RESERVES
9
Section 7.3 CHECKS
10
Section 7.4 FISCAL YEAR
10
Section 7.5 SEAL
10
Section 7.6 OFFICES
10
ARTICLE 8
AMENDMENTS
10
Section 8.1 AMENDMENTS
10
BY-LAWS
ARTICLE 1
STOCKHOLDERS
Section 1.1 ANNUAL MEETINGS. The annual meeting of the
Stockholders of the Company for the election of directors and for the
transaction of such other business as properly may come before such meeting
shall be held at such place either within or without the State of Delaware and
at 10:00 A.M. local time on the fourth Tuesday in March (or, if such is a legal
holiday, then on the next succeeding business day), or at such other time and
date as shall be fixed from time to time by resolution of the Board of Directors
and as set forth in the notice of the meeting. The Chairman of the Board or, in
his absence, the President, shall determine the purpose or purposes and the
agenda of and order of business at all regular and special meetings called by
the Board and of any committee on which he serves.
Section 1.2 SPECIAL MEETINGS. Special meetings of the
stockholders may be called at any time by the President (or, in the absence or
disability of the President, by any Vice President), or by the Board of
Directors, and may be called by one-fourth of the shares of stock of the Company
issued and outstanding and entitled to vote at such meeting. Any such request by
stockholders shall state the purpose or purposes of the proposed meeting. Such
special meetings of the stockholders shall be held at such places, within or
without the State of Delaware, as shall be specified in the respective notices
or waivers of notice.
Section 1.3 NOTICE OF MEETINGS. The Secretary or any Assistant
Secretary shall cause notice of the time, place and purpose or purposes of each
meeting of the stockholders (such notice to contain the name of the person or
persons calling the meeting, unless such meeting is the annual meeting of the
stockholders) to be mailed, not less than ten but not more than sixty days prior
to the meeting, to each stockholder of record entitled to vote at his
post-office address as the same appears on the books of the Company at the time
of such mailing. Such further notice shall be given as may be required by law.
Notice of any meeting of stockholders need not be given to any stockholder who
shall sign a waiver of such notice in writing, whether before or after the time
of such meeting. Attendance of any stockholder at any meeting in person or by
proxy, without protesting prior to the conclusion of the meeting the lack of
notice of such meeting, shall constitute a waiver of notice by him. Notice of
any adjourned meeting of the stockholders of the Company need not be given.
Section 1.4 BUSINESS TRANSACTED AT SPECIAL MEETINGS OF
STOCKHOLDERS. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice thereof.
Section 1.5 QUORUM. Except as at the time otherwise required
by statute or by the
Certificate of Incorporation, the presence at any stockholders meeting, in
person or by proxy, of a majority of the shares of stock then issued and
outstanding and entitled to vote at the meeting, shall be necessary and
sufficient to constitute a quorum for the transaction of business.
Section 1.6 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. To the
extent permitted by any statute at the time in force, whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action, by any statute, by the Certificate of
Incorporation or by these By-Laws, the meeting and vote of stockholders may be
dispensed with if 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
shall consent in writing to such corporate action being taken. 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.
Section 1.7 APPROVAL OR RATIFICATION BY STOCKHOLDERS. The
board of directors in its discretion may submit any act, transaction or contract
for approval or ratification at any annual meeting of the stockholders, or at
any special meeting of the stockholders called for the purpose of considering
any such act, transaction or contract. Any act, transaction or contract that
shall be approved or be ratified by the vote of the stockholders holding a
majority in voting power of the issued and outstanding shares of the capital
stock of the Company present in person or by proxy at such meeting and entitled
to vote thereat on such matter (provided that a quorum shall be present) shall
be as valid and as binding upon the Company and upon all the stockholders as if
it had been approved or ratified by every stockholder of the Company.
ARTICLE 2
BOARD OF DIRECTORS
Section 2.1 GENERAL POWERS. The property, affairs and business
of the Company shall be managed by the Board of Directors. Each Director shall
be at least eighteen years of age, and each Director shall be a stockholder;
PROVIDED, HOWEVER, that existing Directors shall have the power to waive this
requirement in circumstances which they deem, in their discretion, to be
appropriate. The Board of Directors may exercise all the powers of the Company,
whether derived from law or the Certificate of Incorporation, except such powers
as are, by statute, by the Certificate of Incorporation or by these By-Laws,
vested solely in the stockholders of the Company.
Section 2.2 NUMBER AND TERM OF OFFICE. The Board of Directors
shall consist of at least one and not more than seven Directors, such number to
be fixed from time to time by resolution of the Board of Directors. The initial
Board of Directors shall consist of one (1) Director. Each Director (whenever
elected) shall hold office until his successor shall have been elected and shall
qualify or until he shall have resigned in the manner provided in Section 2.8,
or
shall have been removed in the manner provided in Section 2.9.
Section 2.3 ELECTION OF DIRECTORS. The Directors elected by
the Incorporator shall hold office until the first annual meeting of
stockholders, and until their successors shall have been elected and qualified.
Commencing with the first annual meeting of stockholders, except as otherwise
provided in Sections 2.9 and 2. 10, the Directors shall be elected annually at
the annual meeting of the stockholders. In the event of the failure to elect
Directors at an annual meeting of the stockholders, then Directors may be
elected at any regular or special meeting of stockholders entitled to vote for
the election of Directors provided that notice of such meeting shall contain
mention of such purpose. At each meeting of the stockholders for the election of
Directors, provided a quorum is present, the Directors shall be chosen and
elected by a plurality of the votes validly cast at such election.
Section 2.4 ANNUAL AND REGULAR MEETINGS. The annual meeting of
the Board of Directors for the choosing of officers and for the transaction of
such other business as may come before the meeting shall be held in each year as
soon as possible after the annual meeting of the stockholders at the place of
such annual meeting of the stockholders, and notice of such annual meeting of
the Board of Directors shall not be required to be given. The Board of Directors
from time to time may provide by resolution for the holding of regular meetings
and fix the time and place (which may be within or outside the State of
Delaware) thereof. Notice of such regular meetings need not be given; PROVIDED,
HOWEVER, that in case the Board of Directors shall fix or change the time or
place of regular meetings, notice of such action shall be mailed promptly to
each Director who shall not have been present at the meeting at which such
action was taken.
Section 2.5 SPECIAL MEETINGS; NOTICE. Special meetings of the
Board of Directors shall be held whenever called by a majority of the Board of
Directors, by the President (or, in the absence or disability of the President,
by any Vice President), or by any two Directors, at such time and place (which
may be within or outside of the State of Delaware) as may be specified in the
respective notices or waivers of notice thereof. Neither the business to be
transacted at nor the purpose of any special meeting need be specified in the
waiver of notice of such meeting. Special meetings of the Board of Directors may
be called on one day's notice to each Director, personally or by telephone,
telegram or telecopier, or on two days' notice by mail. Notice of any special
meeting need not be given to any Director who shall be present at such meeting,
and any business may be transacted thereat. No notice need be given of any
adjourned meeting.
Section 2.6 QUORUM. At all meetings of the Board of Directors,
the presence of a majority of the total number of Directors shall be necessary
and sufficient to constitute a quorum for the transaction of business. Except
when otherwise required by statute, the act of a majority of the Directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. In the absence of a quorum, a majority of the Directors
present may adjourn the meeting for time to time, until a quorum shall be
present.
Section 2.7 TELEPHONE MEETINGS; ACTION WITHOUT A MEETING. Any
one or more members of the Board or any Committee thereof may participate in a
meeting of the Board or Committee by means of a conference telephone or any
means of communication by which all
persons participating in the meeting can hear each other at the same time,
and participation at such a meeting shall constitute presence in person at
such meeting for all purposes. Any action required or permitted to be taken
at any meeting of the Board of Directors or Committee may be taken without a
meeting, if written consents thereto are signed by all members of the Board
or Committee, as the case may be, and such written consents are filed with
the minutes of proceedings of the Board or Committee.
Section 2.8 RESIGNATION. Any Director may resign at any time
by delivering a written resignation to the Company. Unless otherwise specified
therein, such resignation shall take effect upon receipt thereof.
Section 2.9 REMOVAL OF DIRECTORS. Except as the stockholders
may otherwise agree, any Director may be removed at any time for cause upon the
affirmative vote of the holders of majority of the outstanding shares of stock
of the Company entitled to vote for the election of such Director, held at a
special meeting of such stockholders called for the purpose. Except as the
stockholders may otherwise agree, any vacancy in the Board of Directors caused
by any such removal may be filled at such meeting by the stockholders entitled
to vote for the election of the Director so removed. Except as the stockholders
may otherwise agree, if such stockholders do not fill such vacancy at such
meeting, such vacancy may be filled in the manner provided in Section 2.10.
Section 2. 10 VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If
any vacancies shall occur in the Board of Directors, by reason of death,
resignation, removal (for or without cause) or otherwise, or if the authorized
number of Directors shall be increased, the Directors then in office shall
continue to act, and, except as the stockholders may otherwise agree, such
vacancies may be filled by a majority of the Directors then in office, though
less than a quorum, and the Directors so chosen shall hold office until the next
annual election and until their successors are duly elected and qualified,
unless sooner displaced. Any such vacancies or newly created Directorships may
also be filled by the stockholders in accordance with the provisions of Section
2.9.
Section 2.11 COMPENSATION. The amount, if any, which each
Director shall be entitled to receive as compensation for his services as such
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE 3
COMMITTEES
Section 3.1 HOW CONSTITUTED. The Board of Directors, by
resolution or resolutions adopted by a majority of the whole Board of Directors,
may designate an Executive Committee and/or one or more other Committees, each
such Committee to consist of such number of Directors as from time to time shall
be fixed by resolution or resolutions similarly passed. The Board of Directors
shall designate the Chairman of each such committee.
Thereafter, members (and alternate members, if any) of each such Committee
shall be designated annually, in like manner, at any regular or special
meeting of the Board of Directors; PROVIDED, HOWEVER, that any such
Committee, from time to time, may be abolished by resolution or resolutions
similarly passed, and may be re-designated in like manner. Each member (and
each such alternate member) of any such Committee shall hold office until his
successor shall have been designated or until he shall cease to be a
Director, or until his death, or until he shall have resigned in the manner
provided in Section 2.8, or shall have been removed in the manner provided in
Section 2.9.
Section 3.2 POWERS. Each Committee shall have and may exercise
such powers of the Board as provided by resolution or resolutions passed to the
extent permitted by law. Any such Committee may be granted power to authorize
the seal of the Company to be affixed to any or all papers which may require it.
Section 3.3 PROCEEDINGS. Subject to the provisions of Section
2.7, each such Committee may fix its own rules of procedure and may meet at any
such place or places (within or outside the State of Delaware) at such time or
times and upon such notice (or without notice) as it shall determine from time
to time. It shall keep a record of its proceedings and shall report such
proceedings to the Board of Directors at a meeting of the Board of Directors
when required.
Section 3.4 QUORUM AND MANNER OF ACTING; TELEPHONE MEETINGS.
Except as may be otherwise provided in the resolution designating any such
Committee, at all meetings of any such Committee the presence of members (or
alternate members, if any) consisting of a majority of the total authorized
membership of such Committee shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of the majority of the
members (or such alternates) present at any meeting at which a quorum is present
shall be the act of such Committee. In the absence or disqualification of any
member or alternate member of such 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. The members (or such alternates) of any such Committee shall act only as
a Committee, and individual members (or such alternates) thereof shall have no
power as such. Telephonic meetings may be held as provided in Section 2.7.
Section 3.5 RESIGNATION. Any member (and any alternate member)
of any such Committee may resign at any time by delivering a written resignation
to either the President, a Vice President, the Secretary or an Assistant
Secretary. Unless otherwise specified therein, such resignation shall take
effect upon receipt thereof.
Section 3.6 REMOVAL. Except as the stockholders may otherwise
agree, any member (and any alternate member) of any such Committee, may be
removed at any time, either for or without cause, by resolution adopted by the
Board of Directors.
Section 3.7 VACANCIES. If any vacancy shall occur in any such
Committee, by reason of disqualification, death, resignation, removal or
otherwise, the remaining members (and
such alternate members) shall continue to act and any such vacancy may,
except as the stockholders may otherwise agree, be filled at any meeting of
the Board of Directors by resolution adopted by the Board of Directors.
ARTICLE 4
OFFICERS
Section 4.1 NUMBER. The officers of the Company shall be
chosen by the Board of Directors and may be a President, a Vice President, a
Secretary and a Controller, who shall hold office until their successors are
chosen and qualify. The Board of Directors may also choose one or more Assistant
Vice Presidents, Assistant Secretaries and Assistant Controllers. Any number of
offices may be held by the same person, but no officer may execute, acknowledge
or verify any instrument in more than one capacity if such instrument is
required by law, by the Certificate of Incorporation, or by these By-laws to be
executed, acknowledged, or verified by two or more officers, and the President
(unless he shall be absent or unavailable, in which case the Controller) must be
one of such executing, acknowledging or verifying officers.
Section 4.2 ELECTION. The Directors elected by the
Incorporator may elect a President, one or more Vice Presidents, one or more
Assistant Vice Presidents, a Secretary, an Assistant Secretary, and a
Controller. Thereafter, the Board of Directors at its first meeting of
stockholders shall elect a President, one or more Vice Presidents, one or more
Assistant Vice Presidents, a Secretary, an Assistant Secretary, and a
Controller. Any officer so elected shall hold office for the term for which he
is elected and until a successor is elected, subject to earlier termination due
to removal or resignation.
Section 4.3 ADDITIONAL OFFICERS. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
Section 4.4 SALARIES. The salaries of all officers and
agents of the Company shall be fixed by the Board of Directors.
Section 4.5 RESIGNATIONS. Any officer may resign at any time
by delivering a written resignation to the Company. Unless otherwise specified
therein, such resignation shall take effect upon receipt thereof.
Section 4.6 REMOVAL AND VACANCIES. Except as the stockholders
may otherwise agree, any officer elected or appointed by the Board of Directors
may be removed at any time either with or without cause by the affirmative vote
of a majority of the Board of Directors. Except as the stockholders may
otherwise agree, any vacancy occurring in any office of the Company shall be
filled by the Board of Directors.
Section 4.7 DUTIES OF THE PRESIDENT. The President shall be
the chief executive officer of the Company. He shall, when present, preside at
all meetings of the stockholders, Directors, and all committees on which he
serves, shall have the general and executive management and control of the
business of the Company, and shall see that all orders and votes of the Board
are carried into effect, except where and to the extent that the execution of
such orders and votes of the Board and management of the business of the Company
are expressly delegated by the Board of Directors to some other officer or
agent, or a Committee, of the Company. He shall execute bonds, mortgages, notes,
contracts, agreements, and other contracts, obligations or instruments in the
name of the Company, may countersign and deliver all certificates for shares of
the capital stock of the Company and other documents requiring a seal under the
seal of the Company, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to another officer or agent of the
Company.
Section 4.8 DUTIES OF THE VICE PRESIDENT. In the event of the
absence or disability of the President, the first Vice President 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. Except where by
law the signature of the President is required, the Vice President shall possess
the same power as the President to sign all certificates, contracts, obligations
and other instruments of the Company; PROVIDED the signature of the Controller
of the Company shall also be obtained. The Vice President shall perform such
other duties and may exercise such other powers as from time to time may be
assigned to him by these By-Laws or by the Board of Directors or by the
President.
Section 4.9 DUTIES OF THE SECRETARY. The Secretary shall, if
present, act as Secretary of, and keep the minutes of, all the proceedings of
the meetings of the stockholders and of the Board of Directors, and of any
committee of the Board of Directors in one or more books to be kept for that
purpose; shall perform such other duties as shall be assigned to him by the
President or the Board of Directors; and, in general, shall perform all duties
incident to the office of Secretary.
Section 4.10 DUTIES OF THE CONTROLLER. The Controller shall
keep or cause to be kept full and accurate records of all receipts and
disbursements in the books of the Company and shall have the care and custody of
all funds and securities of the Company. He shall disburse the funds of the
Company as may be ordered by the Board of Directors, shall render to the
President and Directors, whenever they request it, an account of all of his
transactions as Controller, and shall perform such other duties as may be
assigned to him by the President or the Board of Directors. He shall prepare or
cause to be prepared appropriate financial statements for the Company. The
Controller shall also perform such other duties as may be assigned to him by the
President or the Board of Directors; and, in general, shall perform all duties
incident to the office of Controller. Except where by law the signature of the
President is required, the Controller shall possess the same power as the
President to sign all certificates, contracts, obligations and other instruments
of the Company; PROVIDED the signature of any Vice President of the Company
shall also be obtained.
Section 4.11 EMPLOYEE BONDS. The Board of Directors may
require the Controller, the Assistant Controllers and any other officers, agents
or employees of the Company to give bond for the faithful discharge of their
duties, in such sum and of such character as the Board may from time to time
prescribe.
ARTICLE 5
CAPITAL STOCK
Section 5.1 CERTIFICATES OF STOCK. Every holder of stock in
the Company shall be entitled to have a certificate signed by, or in the name of
the Company by, the President or Vice President, and by the Controller or an
Assistant Controller, or the Secretary or an Assistant Secretary of the Company,
certifying the number of shares owned by him in the Company. Each such
certificate shall state upon the face thereof. (i) that the Company is formed
under the laws of Delaware, (ii) the name of the person or persons to whom the
stock is issued, and (iii) the number and class of shares, and the designation
of the series, if any, which such certificate represents.
Section 5.2 SIGNATURES. Any or all of the signatures on such
certificate may be a facsimile if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Company itself or its
employee. 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 Company with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 5.3 LOST, STOLEN OR DESTROYED CERTIFICATES. The Board
of Directors may direct that a new certificate or certificates be issued in
place of any certificate or certificates theretofore issued by the Company
alleged to have been stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be lost or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Company a bond in such sum
as it may direct as indemnity against any claim that may be made against the
Company with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 5.4 TRANSFER OF STOCK. Except as the stockholders may
otherwise agree, upon surrender to the Company or the transfer agent of the
Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Company to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
Section 5.5 RECORD DATE. In order to determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or 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 fifty nor less
than ten days before the date of such meeting, or other corporate action or
event to which it relates. If no record date is fixed, the record date shall
be that date prescribed by statute as then in effect.
Section 5.6 REGISTERED STOCKHOLDERS. Prior to due presentment
for registration of transfer of a security in registered form, the Company may
treat the registered owner as the person exclusively entitled to vote, to
receive notifications, and otherwise to exercise all the rights and powers of an
owner.
ARTICLE 6
INDEMNIFICATION
Section 6.1 ACTIONS AGAINST OFFICERS AND DIRECTORS. The
Company shall indemnify to the full extent now or hereafter authorized or
permitted by the Delaware General Corporation Law (or any successor or related
statute or statutes and whether or not specifically required, permitted, or
authorized thereby) any person made, or threatened to be made, a party to an
action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a director or officer of
the Company or is or was serving as an officer or director of any other
corporation at the request of the Company. The indemnification provided hereby
shall continue as to a person who has ceased to be a director or officer, inure
to the benefit of his heirs, executors and administrators, and shall not be
deemed exclusive of any other rights provided by any law, agreement, vote of
stockholders or directors or otherwise.
Section 6.2 INSURANCE. The Company may purchase and maintain
insurance on behalf of any such person against any liability (including legal
expenses) asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the Delaware General
Corporation Law or any successor or related statute or statutes.
ARTICLE 7
GENERAL PROVISIONS
Section 7.1 DIVIDENDS. Dividends upon the stock of the
Company, 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, bonds, in property, or in shares
of stock, subject to provisions of the Certificate of Incorporation.
Section 7.2 RESERVES. Before payment of any dividend, there
may be set aside out of any funds of the Company 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 Company, or for such other purposes as the
Directors shall think conducive to the interest of the Company, and the
Directors may modify or abolish any such reserve.
Section 7.3 CHECKS. All checks or demands for money and notes
of the Company shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
Section 7.4 FISCAL YEAR. The fiscal year of the company shall
be fixed by resolution of the Board of Directors.
Section 7.5 SEAL. The corporate seal shall have inscribed
thereon the name of the Company, the year of its incorporation, and the words
"Corporate Seal, Delaware". The seal may be used in causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 7.6 OFFICES. An office of the Company shall be located
at such place or places as the Board of Directors shall designate from time to
time. The Company may have offices at such places both within or outside the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Company may require.
ARTICLE 8
AMENDMENTS
Section 8.1 AMENDMENTS. Except as the stockholders may
otherwise agree, these By-Laws may be altered, amended or repealed by a majority
of the stockholders of the Company at any regular meeting of the stockholders or
at any special meeting of the stockholders if notice of such alteration or
repeal be contained in the notice of such special meeting. Except as the
stockholders may otherwise agree, these By-laws may likewise be amended by a
majority vote of all Directors at any regular or special meeting of the Board of
Directors if notice of such alteration or repeal be contained in the notice of
such special meeting.
EX-10.1
4
EXHIBIT 10.1
OPTION AGREEMENT
Agreement made this 25th day of January 1999 among and between Franklin
S. Felber, having an address at 13472 Calle Colina, Poway, CA 92064 ("Felber"),
Jyra Research Inc., having an address at Hamilton House, 111 Marlowes, Hemel
Hempstead HP1 1BB, England ("Jyra"), and, as to paragraphs (2), (3) and (5)
only, Path 1 Network Technologies Inc., having an address at Suite 230, 9339
Genesee Avenue, San Diego, CA 92121 ("Path 1").
WHEREAS, Felber desires to sell a portion of shares of Path 1
beneficially owned by him ("Shares") and
WHEREAS Felber is willing to grant Jyra an option to purchase said
Shares, and
WHEREAS Jyra desires to acquire an option to purchase said Shares from
Felber,
The Parties hereby understand and agree as follows:
(1) Felber hereby grants Jyra an irrevocable option to purchase up to
a total of 255,640 Shares as follows:
(a) 30,000 Shares may be purchased by Jyra during the
period from February 1, 1999 to February 28, 1999 at
a price of $4.00 per Share; and
(b) up to 225,640 Shares may be purchased by Jyra from
time to time up to and including the date which is
the EARLIER of (a) fifteen days after the date upon
which Path 1 receives a minimum of $2,000,000 from
investors in its current equity offering, or (b) July
31, 1999, as follows:
(i) if the Shares are purchased on or before
April 30, 1999, the purchase price per Share
is $3.50; and
(ii) If the Shares are purchased between May 1,
1999 and July 31, 1999, the purchase price
per Share is $4.00.
(2) (a) In the event that Jyra does not exercise the option to
purchase all 30,000 Shares from Felber in accordance with
paragraph 1(a), the option to purchase up to 225,640 Shares
from Felber set forth in paragraph 1(b) shall be void and, in
such event, Felber shall have the right to sell all or a
portion of the 255,640 Shares (which are subject to the option
set forth in paragraphs 1(a) and 1(b)) in accordance with Rule
144.
(b) Path 1 hereby agrees that Felber is not an affiliate of
Path 1, accepts Felber's representations in "Seller's
Representation Letter dated January 25, 1999 (Exhibit 1 A
hereto), and agrees to cooperate in Felber's proposed sales of
Shares as per "Form 144 dated January 25, 1999" (Exhibit 1 B
hereto) in the event that Jyra does not exercise the option to
purchase all 30,000 Shares from Felber in accordance with
paragraph 1(a). Path 1 has made its own independent
determination that, as of January 25, 1999, Felber has
satisfied all the conditions in Seller's Representation Letter
dated January 25, 1999, and that, as of January 25, 1999, Path
1 would approve Felber's sale of Shares pursuant to Rule 144.
Path 1 hereby agrees that it will take no steps to change the
status of Felber so that future sales of Shares pursuant to
Rule 144 remain available and approved.
(3) In the event Jyra purchases some but not all of the Shares
subject to the option in accordance with paragraph 1(b),
Felber shall have the right to sell the balance of any such
Shares not purchased by Jyra in accordance with Rule 144.
(4) Payment for the Shares shall be made in U.S. funds by bank or
certified check or by wire transfer, in no event later than
(a) February 28, 1999 with respect to sales under paragraph
1(a), (b) April 30, 1999 with respect to sales under paragraph
1(b)(i), and (c) July 31, 1999 with respect to sales under
paragraph 1(b)(ii).
(5) This represents the entire Option Agreement between the
parties, superseding all prior agreements, and may only be
modified in writing signed by the parties.
Jyra Research Inc.
By /s/ Roderick Adams /s/ Franklin S. Felber
--------------------- ------------------------
Roderick Adams Franklin S. Felber
Director
Path 1 Network Technologies Inc.
As to paragraphs (2), (3) and (5) only
By /s/ Michael Berns
--------------------
Michael Berns
Director
By /s/ James Berns
------------------
James Berns
Secretary & General Counsel
EX-10.2
5
EXHIBIT 10.2
January 25, 1999
LOCK UP AGREEMENT
The undersigned, holders in the aggregate of 3,595,000 shares of common
stock, $.001 par value of Path 1 Network Technologies Inc. ("Path 1")
("Shares"), hereby agree that until February 1, 2000, none of them shall either
offer for sale or sell any Shares, except for Franklin S. Felber ("Felber") who
has the right to sell Shares pursuant to the terms of a separate Option
Agreement dated today (the "Option Agreement") between Felber and Jyra Research
Inc. ("Jyra") pursuant to which Felber has granted to Jyra an irrevocable option
to purchase up to 255,640 Shares. The restrictions agreed to herein shall
automatically lapse and be of no force or effect in the event of any sales made
in the context of a tender offer, merger, or other takeover involving Path 1.
In the event that Jyra does not exercise that certain option to
purchase up to a total of 255,640 Shares in accordance with the terms of the
Option Agreement, Felber shall not be bound by the resale restrictions herein
respecting any and all such 255,640 Shares optioned to, but not purchased by,
Jyra and, in such event, shall be free to sell any such Shares in accordance
with the provisions of Rule 144.
The balance of the Shares held by Felber, viz. 255,640 Shares, shall
continue to be subject to the terms of this agreement.
This agreement shall not be effective unless signed by all parties
listed below.
/s/ Ronald D. Fellman /s/ Franklin S. Felber
- ----------------------- ------------------------
Ronald D. Fellman Franklin S. Felber
/s/ Rona Berns /s/ James Berns
- ---------------- -----------------
Rona Berns James Berns
/s/ Douglas Palmer /s/ John Hooker
- -------------------- -----------------
Douglas Palmer John Hooker
