Registration of Securities (General Form) — Form 10
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10SB12G Form 10 130 474K
2: EX-2.1 Stock Purchase Agreement 33 84K
3: EX-2.2 Agreement Dated Nov. 8, 1999 43 157K
4: EX-2.3 Agreement and Plan of Merger 2 18K
5: EX-2.4 Share Purchase Agreement Dated Aug. 9, 1999 45 147K
6: EX-2.5A Share Purchase Agreement Dated Oct. 22,1999 51 170K
7: EX-2.5B Share Purchase Agreement Dated Oct. 22, 1999 8 27K
8: EX-3.1A State of Delaware 5 25K
9: EX-3.1B Articles of Merger 2 14K
10: EX-3.2 By-Laws of Telemonde 15 65K
11: EX-4.1 Telemonde 2 13K
12: EX-4.2 Registration Rights Agreement 14 64K
13: EX-4.3 Registration Rights Agreement 10 50K
14: EX-10.1 Warrant 14 60K
26: EX-10.10 Composite Guarantee and Debenture 28 84K
27: EX-10.11 Loan Facility Agreement 26 72K
15: EX-10.2 Warrant 13 50K
16: EX-10.3 Consulting Agreement 4 26K
17: EX-10.4 Service Agreement for 13 57K
18: EX-10.4A Schedule of Employment Terms 1 11K
19: EX-10.5 Capacity Sales Agreement 29 73K
20: EX-10.5A Promissory Note 1 11K
21: EX-10.5B Promissory Note 1 11K
22: EX-10.6 Capacity Purchase Agreement 23 88K
23: EX-10.7 Transmission Capacity Agreement 19 64K
24: EX-10.8 Transmission Capacity Agreement 22 76K
25: EX-10.9 Transmission Capacity Agreement 23 65K
31: EX-21 List of Subsidiaries 1 10K
32: EX-27 Financial Data Schedule 2 12K
28: EX-99.1 Heads of Agreement 4 24K
29: EX-99.2 Agreement 17 69K
30: EX-99.3 Term Sheet 2 12K
Exhibit 3.1(a)
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "TELEMONDE, INC.", FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY
OF JUNE, A.D. 1999, AT 1 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
(SEAL APPEARS HERE] /s/ Edward J. Freel
--------------------------
Edward J. Freel, Secretary
of State
3063052 8100 AUTHENTICATION: 9838565
991265147 DATE: 06-30-99
CERTIFICATE OF INCORPORATION
OF
TELEMONDE, INC.
FIRST: The name of the Corporation is
Telemonde, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is 150,000,000 shares, of which
145,000,000 shares shall be designated as common stock, $.001 par value per
share, and 5,000,000 shares shall be designated preferred stock, $.01 par value
per share ("Preferred Stock").
Subject to the limitations and in the manner provided by law, shares of
Preferred Stock may be issued from time to time in series, and the Board of
Directors of the Corporation is hereby authorized to establish and designate
series of Preferred Stock, to fix the number of shares constituting each series,
and to fix the designations and the relative rights, preferences and limitations
of the shares of each series and the variations in the relative rights,
preferences and limitations as between series, and to increase and to decrease
the number of shares constituting each series. Subject to the limitations and in
the manner provided by law, the authority of the Board of Directors of the
Corporation with respect to each series shall include without limitation the
authority to determine the following:
(a) The designation of such series;
(b) The number of shares initially constituting such series;
(c) The increase, and the decrease to a number not less than the number of
the outstanding shares of such series, of the number of shares constituting such
series theretofore fixed;
(d) The rate or rates and the times at which dividends on the shares of
such series shall be paid, the form in which such dividends shall be paid or
payable (which may include additional shares of capital stock of the Company)
and whether or not such dividends shall be cumulative and, if such dividends
shall be cumulative, the date or dates from and after which they shall
accumulate;
provided, however, that, if the stated dividends are not paid in full, the
shares of all series of Preferred Stock ranking pari passu shall share ratably
---- -----
in the payment of dividends, including accumulations, if any, in accordance with
the sums which would be payable on such shares if all dividends were declared
and paid in full;
(e) Whether or not the shares of such series shall be redeemable and, if
such shares shall be redeemable, the terms and conditions of such redemption,
including but not limited to the date or dates upon or after which such shares
shall be redeemable and the amount per share which shall be payable upon such
redemption, which amount may vary under different conditions and at different
redemption dates;
(f) The amount payable on the shares of such series in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series;
(g) Whether or not the shares of such series shall have voting rights, in
addition to the voting rights provided by law and, if such shares shall have
such voting rights, the terms and conditions thereof, including but not limited
to the right of the holders of such shares to vote as a separate class either
alone or with the holders of shares of one or more other series of Preferred
Stock and the right to have more than one vote per share;
(h) Whether or not a sinking fund shall be provided for the redemption of
the shares of such series and, if such a sinking fund shall be provided, the
terms and conditions thereof;
(i) Whether or not a purchase fund shall be provided for the shares of such
series, and, if such a purchase fund shall be provided, the terms and conditions
thereof;
(j) Whether or not the shares of such series shall have conversion or
exchange privileges, and, if such shares shall have conversion or exchange
privileges, the terms and conditions of conversion or exchange, including but
not limited to any provision for the adjustment of the conversion rate or the
conversion price and whether conversion or exchange can be affected solely by
the Corporation or the holder; and
(k) Any other relative rights, preferences and limitations.
FIFTH: The name and mailing address of the incorporator is J. Porter
Durham, Jr., 1800 Republic Centre, 633 Chestnut Street, Chattanooga, Tennessee
37450-1800.
SIXTH: Election of directors need not be by written ballot.
SEVENTH: In furtherance of, and not in limitation of the powers
conferred by statute, the Board of Directors is authorized to adopt, amend, or
repeal bylaws of the Corporation by a majority vote at any regular or special
meeting of the Board or by written consent. The stockholders of the Corporation
may not adopt, amend or repeal any bylaw unless such action is
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approved by the affirmative vote of the holders of not less than two-thirds of
the voting power of all of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, considered
for purposes of this Article SEVENTH as a single class.
EIGHTH: The directors (other than any director elected solely by
holders of one or more classes or series of Preferred Stock) shall be
classified, with respect to the terms for which they severally hold office, into
three classes, as nearly equal in number as possible, one class to hold office
initially for a term expiring at the next succeeding annual meeting of
stockholders, another class to hold office initially for a term expiring at the
second succeeding annual meeting of stockholders and another class to hold
office initially for a term expiring at the third succeeding annual meeting of
stockholders, with the members of each class to hold office until their
successors are duly elected and qualify. Thereafter, at each annual meeting of
the stockholders, the successors to the class of directors whose term expires at
such meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election and until their successors are duly elected and qualify.
NINTH: No director of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General Corporation Law
is amended after the filing of this Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Any repeal or modification of this section
NINTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
TENTH: To the maximum extent permitted by Delaware law in effect from
time to time, the Corporation shall indemnify and, without requiring a
preliminary determination of the ultimate entitlement to indemnification, shall
pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any individual who is a present or former director or officer
of the Corporation and who is made a party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made a
party to the proceeding by reason of his service in that capacity, against
judgements, penalties, fines, settlements and reasonable expenses actually
incurred by them, unless it is established that (i) the act or omission of the
director or officer was material to the matter giving rise to the proceeding and
(A) was committed in bad faith or (B) was the result of active and deliberate
dishonesty, (ii) the director or officer actually received an improper personal
benefit, or (iii) in the case of any criminal proceeding, the director or
officer had reasonable cause
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to believe that the act or omission was unlawful. The Corporation may, with the
approval of its Board of Directors, provide such indemnification and advance for
expenses to a person who served a predecessor of the Corporation in any of the
capacities described in (a) or (b) above and to any employee or agent of the
Corporation or a predecessor of the Corporation.
The Corporation shall, as a condition to advancing expenses to a director
or officer, obtain a written undertaking by him or on his behalf to repay the
amount paid or reimbursed by the Corporation if it shall ultimately be
determined that such persons are not entitled to be indemnified by the
Corporation under Delaware law or any applicable contract.
Neither the amendment nor repeal of this Article TENTH, nor the adoption or
amendment of any other provision of the Bylaws of the Corporation inconsistent
with this Article TENTH, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
Any amendment to this Article TENTH shall be valid only if approved by the
unanimous vote of all of the members of the Board of Directors and by the
affirmative vote of two-thirds of all of the votes entitled to be cast on the
matter by stockholders.
ELEVENTH: No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be taken
without a meeting.
IN WITNESS WHEREOF, I have made, signed and sealed this Certificate of
Incorporation this 29th day of June, 1999.
/s/ J. Porter Durham, Jr.
---------------------------------
J. Porter Durham, Jr.
Incorporator
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