Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment #2 to Form S-1 6 45K
2: EX-3.1(A) Certificate of Incorporation 9 36K
3: EX-3.1(B) Certificate of Incorporation to Be Effective 8 31K
4: EX-3.2(A) Bylaws of Registrant 32 125K
5: EX-10.6(A) O'Connell Covenant Not to Compete 6 20K
6: EX-10.6(B) Ahlers Covenant Not to Compete 6 20K
7: EX-10.6(C) Allen Covenant Not to Compete 6 20K
8: EX-10.7(A) Letter Agreement - Steven C. Roberts 2 11K
9: EX-10.7(B) Noncompetition Agreement - Steven C. Roberts 3 14K
10: EX-10.8 Form of Indemnification Agreement 11 44K
11: EX-21.1 List of Subsidiaries 1 5K
EX-3.1(B) — Certificate of Incorporation to Be Effective
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EXHIBIT 3.1(b)
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MODEM MEDIA . POPPE TYSON, INC.
A DELAWARE CORPORATION
Modem Media . Poppe Tyson, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of Delaware (the "Corporation"),
does hereby certify as follows:
FIRST: That the Corporation was originally incorporated on October 10,
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1996 under the name TN Technologies Holding Inc., pursuant to General
Corporation Law.
SECOND: That the Corporation's Certificate of Incorporation is hereby
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amended and restated to read in its entirety as follows:
"FIRST: The name of this corporation is Modem Media . Poppe Tyson, Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. 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 Delaware ("Delaware Law").
FOURTH: This Corporation is authorized to issue two classes of stock to
be designated, respectively, "common stock" and "preferred stock." The total
number of shares which this Corporation is authorized to issue is __________
shares. __________ shares shall be designated common stock (the "Common
Stock"), of which __________ shares shall be designated Class A common stock
(the "Class A Common Stock"), and of which __________ shares shall be designated
Class B common stock (the "Class B Common Stock"). 5,000,000 shares shall be
undesignated preferred stock (the "Preferred Stock"). Each share of Preferred
Stock shall have a par value of $0.001, and each share of Common Stock shall
have a par value of $0.001.
Any Preferred Stock not previously designated as to series may be
issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board), and such
resolution or resolutions shall also set forth the voting powers, full or
limited or none, of
each such series of Preferred Stock and shall fix the designations, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions of each such series of Preferred
Stock. The Board of Directors is authorized to alter the designation, rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock and, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series of Preferred Stock, to
increase or decrease (but not below the number of shares of any such series then
outstanding) the number of shares of any such series subsequent to the issue of
shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired
by the Corporation (whether by redemption, repurchase, conversion to Common
Stock or other means), shall upon such reacquisition resume the status of
authorized and unissued shares of Preferred Stock, undesignated as to series and
available for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
Each share of Class B Common Stock issued by the Corporation, if
reacquired by the Corporation (whether by repurchase, conversion into Class A
Common Stock or other means) shall upon such reacquisition be retired and may
not be reissued thereafter.
FIFTH: The shares of Class A Common Stock and Class B Common Stock shall
be identical in all respects and shall have equal rights and privileges, except
as expressly set forth in this Article FIFTH.
1. Dividends. Subject to any preferential dividend rights of any
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series of Preferred Stock as may then be outstanding, dividends or distributions
upon the Class A Common Stock and Class B Common Stock may be declared by the
Board of Directors and paid by the Board of Directors of the Corporation from
time to time in such amounts as the Board shall determine, out of any source at
the time lawfully available therefor, provided that identical dividends or
distributions per share are declared and paid concurrently upon the shares of
each such class. In the case of dividends or other distributions payable in
Class A Common Stock or Class B Common Stock, only shares of Class A Common
Stock shall be distributed with respect to Class A Common Stock and only shares
of Class B Common Stock shall be distributed with respect to Class B Common
Stock. In the case of dividends or other distributions consisting of other
voting securities of the Corporation, the Corporation shall declare and pay such
dividends in two separate classes of such voting securities, identical in all
respects, except that the voting rights of each such security paid to the
holders of Class A shall be one-fifth of the voting rights of each such security
paid to the holders of Class B Common Stock. In the case of dividends or other
distributions consisting of non-voting securities convertible into, or
exchangeable for, voting securities of the Corporation, the Corporation shall
provide that such convertible or exchangeable securities and the underlying
securities be identical in all respects (including, without limitation, the
conversion or exchange rate), except that the voting rights of each security
underlying the convertible or exchangeable securities paid to the holders of
Class A Common Stock shall be one-fifth of the voting rights of each security
underlying the convertible or exchangeable securities paid to the holders of
Class B Common Stock,
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and such underlying securities paid to the holders of Class B Common Stock shall
convert into the underlying securities paid to the holders of Class A Common
Stock upon the same terms and conditions applicable to the conversion of Class B
Common Stock into Class A Common Stock.
2. Stock Splits, Combinations and the Like. Neither the Class A
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Common Stock nor the Class B Common Stock shall be split, combined or subdivided
unless at the same time there shall be a proportionate split, combination or
subdivision of such other class of Common Stock.
3. Rights Upon Liquidation or Dissolution. Subject to any
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preferential liquidation rights of any series of Preferred Stock as may then be
outstanding, the holders of the Class A Common Stock and the holders of the
Class B Common Stock shall be entitled to share ratably in the assets of the
Corporation available for distribution to the holders of Common Stock upon any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, after payment or provision for the payment of
the debts and other liabilities of the Corporation.
4. Voting. Except as otherwise required by law, on all matters on
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which the holders of Common Stock shall be entitled to vote, each holder of
Class A Common Stock shall be entitled to one (1) vote for each share of Class A
Common Stock held by such holder, and each holder of Class B Common Stock shall
be entitled to five (5) votes for each share of Class B Common Stock held by
such holder. Except as otherwise required by applicable law, the holders of
shares of Class A Common Stock and Class B Common Stock shall vote together as
one class on all matters submitted to a vote of stockholders of the Corporation.
5. Conversion.
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(a) Optional Conversion. Subject to the provisions of this
subparagraph 5, each holder of record of Class B Common Stock may, at the sole
discretion and option of such holder, convert any whole number or all of such
holder's shares of Class B Common Stock into fully paid and nonassessable shares
of Class A Common Stock at the rate of one share of Class A Common Stock for
each share of Class B Common Stock surrendered for conversion; provided,
however, that such conversion shall not be effective unless and until any
consents or approvals required under applicable securities laws shall have been
obtained.
(b) Automatic Conversion. The outstanding shares of Class B
--------------------
Common Stock shall automatically be converted into Class A Common Stock at the
conversion rate specified in paragraph (a) above, without further action by the
respective holder or holders of such shares, at the times and in the manner
specified as follows: each share of Class B Common Stock shall automatically
convert into Class A Common Stock immediately upon any sale, pledge, conveyance,
hypothecation, assignment or other transfer of such share, whether or not for
value, or attempt thereof, by the initial registered holder thereof, other than
any such transfer by such holder to a nominee of such holder (without any change
in beneficial ownership, as such term is defined under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided
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that any transfer by the initial registered holder to any corporation owning not
less than seventy-five percent (75%) of the equity interests of the initial
registered holder, or majority-owned subsidiary of the initial registered
holder, shall not give rise to automatic conversion hereunder unless and until
such transferee ceases to be either (i) a corporation owning at least seventy-
five percent (75%) of the equity interests of the initial registered holder or
(ii) a majority-owned subsidiary of the initial registered holder; and further
provided that in the event any pledge, conveyance, hypothecation, assignment or
other transfer shall not give rise to automatic conversion hereunder, then any
subsequent transfer or attempt thereof by the holder (other than any such
transfer by such holder to a nominee of such holder (without any change in
beneficial ownership, as such term is defined under Section 13(d) of the
Exchange Act)) shall be subject to automatic conversion upon the terms and
conditions set forth herein other than any transfer by such holder to any
corporation owning not less than seventy-five percent (75%) of the equity
interests of the initial registered holder or to any majority-owned subsidiary
of the initial registered holder.
(c) Mechanics of Conversion. To exercise the optional conversion
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privilege set forth herein, the holder of shares of Class B Common Stock shall
surrender the shares to be converted, accompanied by instruments of transfer
satisfactory to the Corporation and the payment in cash of any amount required
pursuant to subparagraph 5(e) below and sufficient to transfer the Class B
Common Stock being converted to the Corporation free of any adverse interest, at
the principal offices of the Corporation or any of the offices or agencies
maintained for such purpose by the Corporation ("Conversion Agent") and shall
give written notice (by registered or certified mail, overnight courier or hand
delivery) to the Corporation through such Conversion Agent that the holder
elects to convert such shares. Such notice shall also state the name or names,
together with the address or addresses, in which the certificate or certificate
for Class A Common Stock which shall be issuable upon such conversion shall be
issued. As promptly as practicable after the surrender of such shares of Class
B Common Stock as aforesaid, the Corporation shall issue and deliver through
such Conversion Agent to such holder, or on the holder's written order, a
certificate or certificates for the number of full shares of Class A Common
Stock issuable upon the conversion of such shares in accordance with the
provisions hereof. Certificates will be issued for the balance of the shares of
Class B Common Stock in any case in which fewer than all of the shares of Class
B Common Stock represented by a certificate are converted.
Each conversion pursuant to paragraph 5(b) shall be deemed to have been
effected immediately prior to the close of business on the date the share is
transferred or proposed to be transferred. In each such case the person or
persons in whose name or names any certificate of certificates for Class A
Common Stock shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the Class A Common Stock represented
thereby at the effective date of such conversion, unless the stock transfer
books of the Corporation shall be closed on such date, in which event such
conversion shall be deemed to have been effected immediately following the
opening of business on the next day on which the stock transfer books of the
Corporation shall be open. Following any such automatic conversion, the share or
shares of Class B Common Stock so converted shall cease to be outstanding,
notwithstanding the fact that the holder or holders may not have surrendered the
certificate or certificates representing such Class B
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Common Stock for conversion, and such certificate or certificates shall
thereafter represent solely the right to receive a certificate or certificates
for Class A Common Stock issuable upon conversion of the Class B Common Stock so
converted, upon surrender of such certificate or certificates to the Corporation
or its Conversion Agent, of the certificate or certificates for Class B Common
Stock so converted.
(d) Reservation of Shares. The Corporation shall at all times reserve
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and keep available out of the authorized and unissued shares of Class A Common
Stock, solely for the purposes of effecting the conversion of the outstanding
Class B Common Stock, such number of shares of Class A Common Stock as shall
from time to time be sufficient to effect conversion of all outstanding Class B
Common Stock.
(e) Payment of Transfer Taxes. The Corporation will pay any and all
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documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Class A Common Stock on conversion of the Class B
Common Stock pursuant hereto; provided however, that the Corporation shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Class A Common Stock in a name
other that of the original holder of the Class B Common Stock to be converted
and that no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the Corporation, that such
tax has been paid.
(f) Additional Rights of Class B Common Stock. In the event that the
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Corporation shall enter into any consolidation, merger, combination or other
transaction in which shares of any class of Common Stock are exchanged for or
changed into other stock or securities, then, and in such event, the shares of
each class of Common Stock shall be exchanged for or changed into an amount per
share equal to the amount of stock, securities, cash and/or any other property,
as the case may be, into which or for which each share of the other class of
Common Stock is exchanged or changed. Notwithstanding the foregoing, if shares
of Class A Common Stock and Class B Common Stock are exchanged for or changed
into shares of capital stock, such shares so exchanged for or changed into may
(but are not required to) differ to the extent and only to the extent that the
Class A Common Stock and Class B Common Stock differ as provided herein.
In the event of a reclassification, change of outstanding shares (other
than a change in par value or as a result of any subdivision or combination) or
other similar transaction as a result of which the shares of Class A Common
Stock are converted into another security, then a holder of Class B Common Stock
shall be entitled to receive upon conversion the amount of such security that
such holder would have received upon the reclassification or other similar
transaction if such conversion had occurred immediately prior to the record date
of such reclassification or other similar transaction.
If a share of Class B Common Stock shall be converted subsequent to the
record date for the payment of a dividend or other distribution on shares of
Class B Common Stock but prior to
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such payment, then the registered holder of such share at the close of business
on such record date shall be entitled to receive the dividend or other
distribution payable on such share on such date notwithstanding the conversion
thereof.
SIXTH: For so long as any shares of Class B Common Stock are
outstanding, any action required or permitted to be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, by written consent setting forth the action to be taken signed by the
holders of outstanding capital stock entitled to vote thereon having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a stockholders' meeting at which all shares entitled to vote
thereon were present and voted. Commencing at such time as there are no shares
of Class B Common Stock outstanding, any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken only upon
the vote of stockholders at an annual or special meeting duly noticed and called
in accordance with Delaware Law and may not be taken by written consent of
stockholders without a meeting.
SEVENTH: The name and mailing address of the incorporator are:
NAME MAILING ADDRESS
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Thomas I. Savage Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
EIGHTH: The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed in
the Bylaws of the Corporation.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
TENTH: The directors of the Corporation need not be elected by written
ballot unless a stockholder or stockholders holding a majority of the voting
power of the outstanding capital stock entitled to vote demands election by
written ballot at the meeting and before voting.
ELEVENTH:. Advance notice of stockholder nomination for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
TWELFTH: Special meetings of the stockholders of the Corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer or (iii) the Board of Directors.
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THIRTEENTH: 1. To the fullest extent permitted by the Delaware Law as
the same exists or as may hereafter be amended, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director.
2. The Corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer or employee of the Corporation or any predecessor of the Corporation or
serves or served at any other enterprise as a director, officer or employee at
the request of the Corporation or any predecessor to the Corporation.
3. Neither any amendment nor repeal of this Article
THIRTEENTH, nor the adoption of any provision of the Corporation's Certificate
of Incorporation inconsistent with this Article THIRTEENTH, shall eliminate or
reduce the effect of this Article THIRTEENTH, in respect of any matter
occurring, or any action or proceeding accruing or arising or that, but for this
Article THIRTEENTH, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
FOURTEENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained under Delaware Law) outside of the
State of Delaware at such place or places as may be designated from time to time
by the Board of Directors or in the Bylaws of the Corporation.
FIFTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed herein and under Delaware Law, except as
otherwise provided in article THIRTEENTH, and all rights conferred upon
stockholders herein are granted subject to this reservation."
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THIRD: The foregoing amendment and restatement of the Certificate of
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Incorporation has been duly adopted by resolutions adopted by the Board of
Directors of the Corporation in accordance with the provisions of Section
242(b)(1) of the General Corporation Law of Delaware.
FOURTH: The foregoing amendment and restatement of the Certificate of
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Incorporation has been duly adopted by the written consent of the holders of a
majority of the outstanding shares of Common Stock, a majority of the
outstanding shares of Class A Common Stock and a majority of the outstanding
shares of Class B Common Stock, in accordance with the provisions of Sections
242(b)(2) and 228 of the General Corporation Law of Delaware.
FIFTH: The foregoing amendment and restatement of the Certificate of
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Incorporation has been duly adopted in accordance with Section 245 of the
General Corporation Law of Delaware.
IN WITNESS WHEREOF, Modem Media . Poppe Tyson, Inc. has caused this
certificate to be executed by Steven C. Roberts, its Chief Financial Officer and
Secretary, this ______ day of __________ 1999.
By: _______________________________________
Steven C. Roberts
Chief Financial Officer and Secretary
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