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(A) — Certificate of Incorporation
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EXHIBIT 3.1(a)
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TN TECHNOLOGIES INC.
TN Technologies Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That pursuant to a Unanimous Written Consent of the Board of
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Directors of the Corporation, resolutions were duly adopted setting forth a
proposed amendment of the First Amended and Restated Certificate of
Incorporation, as amended (the "Restated Certificate") of said Corporation,
declaring said amendment to be advisable. The resolution setting forth the
proposed amendment is as follows:
RESOLVED: That Article First of the Restated Certificate of Incorporation
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of this corporation is hereby amended in its entirety to read as follows:
"FIRST: The name of the corporation is Modem Media . Poppe Tyson,
Inc."
SECOND: That in lieu of a meeting and vote of the stockholders of the
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Corporation, the stockholders have given written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
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provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said TN Technologies Inc. has caused this Certificate
to be signed by G. M. O'Connell, its President, this 25th day of November, 1998.
TN TECHNOLOGIES INC.
/s/ G. M. O'Connell
_____________________________________
G. M. O'Connell, President
FIRST AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TN TECHNOLOGIES HOLDING, INC.
a Delaware corporation
TN Technologies Holding Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation") does hereby certify as follows:
WHEREAS: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on October 10, 1996.
WHEREAS: This First Amended and Restated Certificate has been duly adopted
in accordance with the provisions of Sections 241 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors of the
Corporation.
THEREFORE BE IT RESOLVED: The Certificate of Incorporation of this
Corporation is amended and restated in its entirety to read as follows:
"FIRST: The name of this corporation is TN Technologies Holding, 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 fifty million
(50,000,000) shares. Forty-five million (45,000,000) shares shall be designated
common stock (the "Common Stock"), of which thirty-nine million nine hundred six
thousand two hundred (39,906,200) shares shall be designated Common Stock, Class
A (the "Class A Common") and five million ninety-three thousand eight hundred
(5,093,800) shares shall be designated Common Stock, Class B (the "Class B
Common"). Five million (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 issued by the Corporation, if reacquired by
the Corporation (whether by repurchase, conversion into Class A Common or other
means) shall upon such reacquisition be retired and may not be reissued
thereafter.
FIFTH: The shares of Class A Common and Class B Common shall be
identical in all respects and shall have equal rights and privileges, except as
expressly set forth in this Article FIFTH.
1. Special Dividend to Class B Common Stock. The holders of Class B
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Common Stock shall be entitled to receive, before any cash dividends shall be
declared and paid upon or set aside for any other class or series of the
Corporation's Common Stock or Preferred Stock, out of funds legally available
therefor, on the dates set forth below, cumulative cash dividends in the amounts
set forth below, plus an amount equal to the taxes payable by the holders of the
Class B Common Stock upon receipt of such dividends, such that the holders of
the Class B Common Stock shall receive an aggregate amount of dividends, after
taxes, equal to the amount set forth below:
Aggregate Dividend
Payment Date Amount
--------------------- ----------------------
March 2, 1998 2,300,000
March 2, 1999 2,300,000
March 2, 2000 2,300,000
March 2, 2001 3,450,000
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Such dividends shall be payable only when and if declared by the Board
of Directors.
2. Other Dividends. Subject to paragraph 1 of this Article FIFTH, any
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preferential dividend rights of any series of Preferred Stock as may then be
outstanding, dividends or distributions upon the Class A Common and Class B
Common 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 or Class B Common, only shares
of Class A Common shall be distributed with respect to Class A Common and only
shares of Class B Common shall be distributed with respect to Class B Common. 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. 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
paid to the holders of Class A Common shall be one-fifth of the voting rights of
each security underlying the convertible or exchangeable security paid to the
holders of Class B Common, and such underlying securities paid to the holders of
Class B Common shall convert into the underlying securities paid to the holders
of Class A Common upon the same terms and conditions applicable to the Class B
Common.
3. Stock Splits, Combinations and the Like. Neither the Class A Common
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nor the Class B Common 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.
4. Rights Upon Liquidation or Dissolution. Subject to any preferential
--------------------------------------
liquidation rights of any series of Preferred Stock as may then be outstanding,
the holders of the Class A Common and the holders of the Class B Common 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.
5. Voting. Except as otherwise required by law, on all matters on which
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the holders of Common Stock shall be entitled to vote, each holder of Class A
Common shall be entitled to one (1) vote for each share of Class A Common held
by such holder, and each holder of Class B Common shall be entitled to five (5)
votes for each share of Class B Common held by such holder.
Except as otherwise required by applicable law, the holders of shares of Class A
Common and Class B Common shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
3
6. Conversion.
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(a) Optional Conversion. Subject to the provisions of this
-------------------
subparagraph 6, each holder of record of Class B Common 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 into fully paid and nonassessable shares of
Class A Common at the rate of one and fifteen thousandths (1.015) shares of
Class A Common for each share of Class B Common 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
--------------------
shall automatically be converted into Class A Common 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 shall automatically convert into Class A
Common 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 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
majority-owned subsidiary of the initial registered holder.
(c) Mechanics of Conversion. No fractional shares of Class A Common
-----------------------
shall be issued upon conversion of Class B Common. In lieu of any fractional
shares to which the holder would otherwise be entitled, the Corporation shall
pay cash equal to the fair market value of such fraction, rounded to the nearest
dollar. To exercise the optional conversion privilege set forth herein, the
holder of shares of Class B Common 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 6(e) below and
sufficient to transfer the Class B Common 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 at such Conversion
Agent that the holder elects to convert such shares.
4
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 which
shall be issuable upon such conversion shall be issued. As promptly as
practicable after the surrender of such shares of Class B Common as aforesaid,
the Corporation shall issue and deliver at 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 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 in any case in which fewer than all of
the shares of Class B Common represented by a certificate are converted.
Each conversion pursuant to paragraph 6(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 shall be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the Class A Common 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
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 Common for conversion, and such certificate or
certificates shall thereafter represent solely the right to receive a
certificate or certificates for Class A Common issuable upon conversion of the
Class B Common 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 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,
solely for the purposes of effecting the conversion of the outstanding Class B
Common, such number of shares of Class A Common as shall from time to time be
sufficient to effect conversion of all outstanding Class B Common.
(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 on conversion of the Class B
Common 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 in a name other that of the
original holder of the Class B Common to be converted and 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. In the event that the
-----------------------------------
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,
5
the shares of each class of Common Stock (assuming conversion of the Class B
Common into Class A Common at the rate specified in subparagraph 6(a) above)
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; provided, however, that if shares of Class A Common and Class B Common
are exchanged for or changed into shares of capital stock, such shares so
exchanged for or changed into may differ to the extent and only to the extent
that the Class A Common and Class B Common 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 are converted into another security, then a holder of Class B
Common shall be entitled to receive upon conversion the amount of such security
that such holder would have received 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 shall be converted subsequent to the
record date for the payment of a dividend or other distribution on shares of
Class B Common but prior to 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 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 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
---- ---------------
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
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the whole Board of Directors shall be fixed exclusively by one or more
resolutions adopted from time to time by the Board of Directors.
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.
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.
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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."
The undersigned hereby certifies that the Corporation has not received any
payment for any of its stock and that the foregoing amendment was approved in
accordance with the provisions of Section 241 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, TN Technologies Holding Inc. has caused this First
Amended and Restated Certificate of Incorporation to be signed by its Chief
Executive Officer this 31st day of December, 1996.
By: /s/ Gregory W. Blaine
-----------------------------
Gregory W. Blaine
Chief Executive Officer
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| Filed on: | | 12/23/98 | | | | | | | S-1/A |
| | 10/10/96 | | 2 |
| List all Filings |
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